Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company agrees that it shall not (and shall not permit any Company Subsidiary to), and that it shall cause its directors, officers and employees not to, and that it shall direct and use its reasonable best efforts to cause its other Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Competing Proposal, (ii) participate in any negotiations regarding, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary in connection with a Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or recommend, or propose publicly to approve or recommend, any Company Competing Proposal, (vi) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i)), or (xi) resolve or agree to do any of the foregoing (any act described in clauses (v) through (ix) above, a “Company Change of Recommendation”). The Company shall immediately cease, and cause its directors, officers and employees to cease, and shall direct and use its reasonable best efforts to cause its other Representatives to immediately cease, any and all existing discussions or negotiations with any parties (or provision of any nonpublic information to any parties) conducted heretofore with respect to any Company Competing Proposal or potential Company Competing Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3. For purposes of this Section 5.3, the term “Person” means any Person or “group,” as used in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries. (b) Notwithstanding the limitations set forth in Section 5.3(a), if the Company receives, prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors (i) constitutes a Company Superior Proposal or (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Company Superior Proposal, then in either event (if the Company Competing Proposal did not result from a material breach of Section 5.3(a)) the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Proposal and keep Parent informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section 5.3 or Section 5.5 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may make a Company Change of Recommendation (i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that, in light of such Company Superior Proposal or intervening event, the failure to take such action would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 2 contracts

Samples: Merger Agreement (Progressive Waste Solutions Ltd.), Merger Agreement (Waste Connections, Inc.)

Solicitation by the Company. (a) ~~From~~ Except as expressly permitted by this Section 5.3, from and after the date ~~of this Agreement~~ hereof until the earlier of the Effective Time or the date, if any, on which this Agreement is validly terminated ~~pursuant to Section 8.1~~in accordance with Article VIII, the Company agrees that it shall ~~not (~~not, and shall ~~not permit any Company Subsidiary to), and that it shall~~ cause ~~its directors, officers and employees~~ the Company’s Affiliates not to, and ~~that it~~ shall direct and use ~~its~~ commercially reasonable ~~best~~ efforts to cause its ~~other~~ and their respective Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly encourage or ~~knowingly~~ facilitate (including by way of ~~furnishing information),~~ providing information or ~~engage in discussions or negotiations regarding,~~ taking any other action) any inquiry, ~~proposal or~~ proposal, offer, request for information, expression of interest or the making, submission or announcement of any inquiry, ~~proposal~~ proposal, offer, request for information or ~~offer (including~~ expression of interest from any ~~inquiry, proposal or offer to its stockholders)~~ Person which constitutes or ~~would~~ may reasonably be ~~reasonably~~ expected to ~~lead to a Company Competing~~ result in, an Acquisition Proposal, (ii) other than clarifying terms of the Acquisition Proposal in accordance with the penultimate sentence of this Section 5.3(a), or to disclose to such Person the existence of this Section 5.3, engage or participate in any discussions or negotiations regarding, or furnish to any Person any ~~nonpublic~~ information relating to the Company or any Company Subsidiary in connection with ~~a Company Competing~~ or in response to an Acquisition Proposal, (iii) ~~engage in discussions with~~ adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend any ~~Person with respect to any Company Competing~~ Acquisition Proposal, (iv) ~~except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify~~ withdraw (or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or recommend, or propose publicly to approve or recommend, any Company Competing Proposal, (vi) withdraw, change, amend, modify or ~~qualify,~~ qualify in a manner adverse to Parent) or otherwise publicly propose ~~publicly~~ to ~~withdraw,~~ withdraw (or change, amend, modify or ~~qualify,~~ qualify in a manner adverse to Parent, ) the Company Board Recommendation, or commit or agree to take any such action, (~~vii~~v) ~~within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having~~ if an Acquisition Proposal has been ~~commenced and (y) two (2) business days prior to the Company Special Meeting~~publicly disclosed, fail to ~~(1) publicly recommend against such tender or exchange offer or take-over bid, or (2)~~ publicly reaffirm the Company Board Recommendation within ten (if 10) Business Days (or, with respect to any material amendments, revisions or changes to the terms of any such previously ~~made by~~ publicly disclosed Acquisition Proposal that are publicly disclosed within the last five (5) Business Days prior to the Effective Time, fail to take the actions referred to in this clause (v), with references to the applicable ten (10) Business Day period being replaced with three (3) Business Days), in each case subject to clause (vi) of this Section 5.3(a), (vi) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal subject to Regulation 14D under the Exchange Act within ten (10) Business Days after the commencement of such ~~time)~~Acquisition Proposal, (vii) fail to include the Company Board Recommendation in the Joint Proxy Statement, (viii) ~~after a tender~~ exempt any Person other than Parent or ~~exchange offer relating to securities of~~ Merger Sub from any Takeover Statute or approve or authorize, or cause or permit the Company ~~having been commenced~~or any Company Subsidiary to enter into, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Lawsany merger agreement, ~~(ix) following the public disclosure or public announcement of a Company Competing Proposal~~acquisition agreement, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meetingreorganization agreement, ~~(x) enter into any~~ letter of ~~intent or similar document relating to~~intent, ~~or any~~ memorandum of understanding, agreement in principle, option agreement, joint venture agreement or ~~commitment~~ partnership agreement providing ~~for,~~ for any ~~Company Competing~~ Acquisition Proposal (other than ~~(x)~~ an Acceptable Confidentiality Agreement entered into in accordance with this Section ~~5.3(b~~5.3) (a “Company Acquisition Agreement”) or (yix) ~~in accordance with Section 8.1(i)), or (xi) resolve~~ commit or agree to do any of the foregoing (~~any act~~ the acts described in clauses (iii), (iv), (v), (vi), (vii), (viii) ~~through~~ or (ix) ~~above~~(to the extent related to the foregoing clauses (iii), (iv), (v), (vi), (vii), (viii) or (ix)), a “~~Company~~ Change of Recommendation”). ~~The~~ Immediately following the execution of this Agreement, the Company ~~shall immediately cease~~shall, and shall cause ~~its directors, officers and employees to cease~~the Company’s Affiliates to, and shall direct and use ~~its~~ commercially reasonable ~~best~~ efforts to cause its ~~other~~ and their respective Representatives to, immediately cease and cause to ~~immediately cease,~~ be terminated any and all existing solicitations, discussions or negotiations with any ~~parties~~ Persons (or provision of any ~~nonpublic~~ non-public information to any ~~parties~~Persons) ~~conducted heretofore~~ with respect to any inquiry, proposal, offer, request for non-public information or expression of interest that constitutes, or may reasonably be expected to result in, an Acquisition Proposal. Promptly following the execution of this Agreement, the Company ~~Competing~~ shall terminate or cause to be terminated access to any physical or electronic data rooms relating to a possible Acquisition Proposal ~~or potential Company Competing Proposal~~by any such Person. The Company shall ~~promptly inform its Representatives~~ be permitted to waive, without Parent’s prior written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill or other agreement (i) in order to permit such person to make an Acquisition Proposal to the Company or (ii) if the Company Board of Directors determines in good faith after consultation with the Company’s ~~obligations~~ outside legal counsel that the failure to waive a particular standstill provision would reasonably be expected to be inconsistent with the directors’ fiduciary duties to the Company Stockholders under ~~this Section 5.3~~applicable Law. For purposes of this Section 5.3, the term “Person” means any Person or “group,” as ~~used~~ defined in Section 13(d) of the Exchange Act, other than, with respect to Parent, the Company or any Company Subsidiary or any of their Representatives. Notwithstanding the limitations set forth in this Section 5.3(a) and subject to compliance with the Company’s obligations contained in Section 5.3(c), ~~Parent~~ if the Company receives, following the date hereof and prior to the receipt of the Company Stockholder Approval, an unsolicited bona fide written Acquisition Proposal that did not result from a knowing and intentional breach of this Section 5.3, the Company and the Company Subsidiaries and the Company’s Representatives may contact the Person or any of its Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that the Company may inform itself about such Acquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, any notices required to be made to Parent ~~Subsidiaries~~pursuant to this Section 5.3 shall not, in and of themselves, be deemed to be a Change of Recommendation. (b) Notwithstanding the limitations set forth in Section 5.3(a), if the Company receives, prior to obtaining the Company Stockholder ~~Approval being obtained~~Approval, an unsolicited bona fide written Acquisition Proposal that did not result from a ~~bona fide, unsolicited, written Company Competing Proposal~~knowing and intentional breach of this Section 5.3, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors ~~(i)~~ constitutes a ~~Company~~ Superior Proposal or ~~(ii)~~ would reasonably be expected to ~~result, after the taking of any of the actions referred to in either of clause (x) or (y) below,~~ result in a ~~Company~~ Superior Proposal, then ~~in either event (if~~ the Company ~~Competing Proposal did not result from a material breach of~~ may, subject to compliance with this Section ~~5.3(a)) the Company may~~ 5.3, take the following actions: (x) furnish ~~nonpublic~~ non-public information with respect to the Company to the Person making such ~~Company Competing Proposal~~Acquisition Proposal (and its Representatives), if, and only if, prior to so furnishing such non-public information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and the Company also provides Parent, prior to or substantially concurrently with the time such non-public information is provided or made available to such Person, any non-public information furnished to such other Person that was not previously furnished to Parent, and (y) engage in discussions or negotiations with such Person with respect to such Acquisition Proposal (and its Representatives). The Company shall provide Parent with an accurate and complete copy of all Acceptable Confidentiality Agreements entered into pursuant to this Section 5.3 substantially concurrently with the ~~Company Competing Proposal~~Company’s entry into such Acceptable Confidentiality Agreement. (c) The Company shall promptly (and in any event within two (2) days) notify Parent ~~promptly (but~~ orally and in ~~no event later than twenty-four (24) hours) after receipt~~ writing of any receipt by the Company ~~Competing Proposal~~or by any of the Company’s Affiliates or, to the Company’s Knowledge, its or their respective Representatives of any ~~initial proposals~~ Acquisition Proposal or ~~inquiries~~ any inquiries, proposals, offers, requests, or expressions of interest that ~~would~~ may reasonably be expected to ~~lead to a Company Competing~~ result in an Acquisition Proposal, or any ~~initial inquiry or~~ inquiry, proposal, offer, request for ~~nonpublic~~ non-public information, or expression of interest for non-public information relating to the Company or any Company Subsidiary by any Person who has made or ~~would reasonably be expected~~ has communicated to the Company it intends to make any ~~Company Competing~~ Acquisition Proposal (or of becoming aware of any of its or their other Affiliates having received any such Acquisition Proposal, inquiry, proposal, offer, request for non-public information, or expression of interest). Such notice ~~shall be made orally and confirmed in writing, and~~ shall indicate the identity of the Person making the ~~Company Competing~~ Acquisition Proposal, inquiry or ~~request or with whom the Company is engaging in discussions or negotiations~~request, and the material terms and conditions of any such ~~proposal~~ inquiry, proposal, offer, request for non-public information, or ~~offer and~~ expression of interest or the nature of the information requested pursuant to such ~~inquiry~~ inquiry, proposal, offer, request for non-public information, or ~~request~~expression of interest, including unredacted copies of all written requests, proposals or offers, including proposed agreements received by the Company or, if such Acquisition Proposal is not in writing, a reasonably detailed written description of the material terms and conditions thereof (including, price) to the extent known to the Company. ~~In addition~~Without limiting the Company’s other obligations under this Section 5.3, the Company shall ~~promptly~~ keep Parent informed on a prompt and timely basis (~~but~~ and in any ~~event~~ event, within ~~twenty-four~~ two (242) ~~hours~~days) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such ~~Company Competing~~ Acquisition Proposal or potential ~~Company Competing~~ Acquisition Proposal and keep Parent informed on a prompt and timely basis (and in any event, within two (2) days) as to the nature of any information requested of the Company with respect thereto. ~~The~~ Without limiting the Company’s other obligations under this Section 5.3, the Company shall promptly provide (~~but~~ and in any event within ~~twenty-four~~ two (242) ~~hours~~days) ~~provide~~ to Parent any material ~~nonpublic~~ non-public information concerning the Company provided to any other Person in connection with any ~~Company Competing~~ Acquisition Proposal that was not previously provided to Parent. Without limiting the foregoing, the Company shall promptly (and in any event within two (2) days after such determination) inform Parent in writing if the Company determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 5.3(b). The Company ~~shall not take~~ agrees that it will not, directly or indirectly, enter into any ~~action to exempt~~ agreement with any Person which directly or indirectly prohibits the Company from ~~the restrictions on “business combinations” contained~~ providing any information to Parent in ~~any applicable Takeover Statute~~ accordance with, or otherwise ~~cause such restrictions not to apply~~complying with, this Section 5.3. (d) Notwithstanding anything in this Section 5.3 ~~or Section 5.5~~ to the contrary, but subject to Section 5.3(e), at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may (i) make a ~~Company~~ Change of Recommendation (i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as only of the ~~date of this Agreement (provided, however, that (A~~type contemplated by Section 5.3(a)(iv) or Section 5.3(a)(vii)) in ~~no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such~~ response to an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), Intervening Event if and only if, (x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal ~~counsel that~~counsel, ~~in light of such Company Superior Proposal or intervening event,~~ that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties ~~of the members of~~ to the Company ~~Board of Directors~~ Stockholders under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) ~~under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect~~ make a ~~Company~~ Change of Recommendation and ~~specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by~~ cause the Company ~~Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent~~ to ~~amend the terms and conditions of~~ terminate this Agreement pursuant to and in ~~a manner that would obviate the need~~ accordance with Section 8.1(j) in order to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.enter into

Appears in 2 contracts

Samples: Merger Agreement (Encana Corp), Merger Agreement (Newfield Exploration Co /De/)

Solicitation by the Company. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. (EST) on the thirty-first day thereafter, the Company and any Representative of the Company or any Company Subsidiary shall be permitted to (i) directly or indirectly solicit, initiate or encourage the submission of a Company Acquisition Proposal and (ii) directly or indirectly participate in discussions or negotiations regarding, and furnish to any Person information with respect to, and take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, a Company Acquisition Proposal; provided, however, that (A) the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of the Company or any Company Subsidiary to, provide to any Person any non-public information (other than any immaterial non-public information) with respect to the Company or any Company Subsidiary without first entering into a confidentiality agreement with such Person with use and disclosure limitations and other material terms that are no more favorable to such Person than those contained in the Confidentiality Agreement and (B) the Company shall promptly provide to Parent any non-public information concerning the Company or any Company Subsidiary that is provided to such person or its Representatives which was not previously provided to Parent. (b) From ~~and after~~ the date of this Agreement until the ~~earlier~~ first to occur of the Effective Time or and the ~~date, if any, on which~~ termination of this Agreement ~~is terminated pursuant to~~ in accordance with Article 7, except as specifically permitted in Section ~~8.1~~5.4(a), Section 5.4(d), Section 5.4(e) or Section 5.4(f), the Company agrees that neither it ~~shall not (and shall not permit~~ nor any ~~Company Subsidiary to), and that it shall cause~~ of its ~~directors, officers and employees not to, and that it shall direct and use its reasonable best efforts to cause its other~~ Subsidiaries or Representatives ~~not to~~will, directly or indirectly: (i) solicit, ~~initiate or knowingly~~ initiate, encourage or ~~knowingly~~ facilitate (including by way of furnishing or disclosing non-public information)) any inquiries, offers or proposals that constitute, or ~~engage in discussions or negotiations regarding~~are reasonably likely to lead to, ~~any inquiry~~a Company Acquisition Proposal, ~~proposal or offer, or the making, submission or announcement~~ and upon becoming aware of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Competing Proposal, (ii) participate in any negotiations regarding, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary in connection with a Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties violation of the members of the Company Board of Directors under applicable Law, waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or recommend, or propose publicly to approve or recommend, any Company Competing Proposal, (vi) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parentthis Section 5.4(b)(i), the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i)), or (xi) resolve or agree to do any of the foregoing (any act described in clauses (v) through (ix) above, a “Company Change of Recommendation”). The Company shall immediately cease, and cause its directors, officers and employees to ceaseshall, and shall ~~direct~~ cause its Subsidiaries to, and use its reasonable best efforts to cause its ~~other~~ Representatives to, stop soliciting, initiating, encouraging, facilitating (including by way of furnishing or disclosing non-public information) or taking any action designed to ~~immediately cease~~facilitate, directly or indirectly, any inquiry, offer or proposal that constitutes, or is reasonably likely to lead to, a Company Acquisition Proposal; (ii) engage in discussions or negotiations with, furnish or disclose any non-public information or data relating to the Acquired Companies to, or in response to a request therefor, give access to the properties, assets or books and ~~all existing~~ records of the Acquired Companies to, any Person who has made or may be considering making a Company Acquisition Proposal or take any action which may otherwise lead to a Company Acquisition Proposal; (iii) approve, endorse or recommend any Company Acquisition Proposal; or (iv) enter into any agreement in principle, letter of intent, arrangement, understanding or other Contract relating to any Company Acquisition Proposal; provided, however, that nothing in this Section 5.4 shall prohibit discussions or negotiations with customers or suppliers in the ordinary course of business consistent with past practices. (c) Except as specifically permitted in Section 5.4(a), Section 5.4(d) and Section 5.4(e), the Company shall, and shall cause each of its Subsidiaries and Representatives to, immediately cease and terminate any ~~parties (~~existing solicitations, discussions, negotiations or ~~provision of~~ other activity with any ~~nonpublic information to any parties) conducted heretofore~~ Person with respect to any Company ~~Competing~~ Acquisition Proposal or ~~potential~~ which could reasonably be expected to lead to a Company ~~Competing~~ Acquisition Proposal, and shall inform its Subsidiaries and Representatives which are engaged in any such solicitations, discussions, negotiations or other activity of the Company’s obligations under this Section 5.4. The Company shall promptly inform its Representatives who have been involved with or otherwise providing assistance in connection with the negotiation of this Agreement and the transactions contemplated by this Agreement of the Company’s obligations under this Section ~~5.3~~5.4. ~~For purposes~~ The Company shall promptly demand that any Person (and the legal, financial or other representatives of any such Person) who has heretofore executed a confidentiality agreement with or for the benefit of any of the Acquired Companies with respect to such Person’s consideration of a possible Company Acquisition Proposal promptly return or destroy (and the Company shall use commercially reasonable efforts to cause any such destruction to be certified in writing by any such Person to the Company) all confidential information heretofore furnished by the Acquired Companies or any of their legal, financial or other representatives to such Person or any of its legal, financial or other representatives in accordance with the terms of the confidentiality agreement with such Person. (d) Notwithstanding anything to the contrary in this Agreement or in the Confidentiality Agreement, prior to obtaining the Required Company Vote, nothing in this Agreement shall prevent the Company or the Company Board from: (i) after the date of this Agreement, directing any unsolicited inquiries received by the Company or any Representative of the Company to one designated Representative who may direct the inquirer to this Agreement; (ii) after the date of this Agreement, engaging in discussions or negotiations with, furnishing or disclosing any information or data relating to the Acquired Companies to, or in response to a request therefor, giving access to the properties, assets or books and records of the Acquired Companies to, any Person who has made an unsolicited, bona fide, written Company Acquisition Proposal after the date hereof that did not result from a violation by the Acquired Companies or any of their Representatives of this Section ~~5.3~~5.4; provided, however, that prior to engaging in discussions or negotiations with, furnishing or disclosing any information or data relating to the ~~term “Person” means any Person~~ Acquired Companies to, or ~~“group,” as used in Section 13(d)~~ giving access to the properties, assets or books and records of the ~~Exchange Act~~Acquired Companies to, ~~other than~~such Person, ~~with respect to the Company, Parent or any Parent Subsidiaries.~~ (bA) ~~Notwithstanding the limitations set forth in Section 5.3(a), if~~ the Company ~~receives~~Board, ~~prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines~~ acting in good ~~faith~~ faith, has determined (I) after consultation with ~~the Company’s~~ its outside legal counsel and financial advisors ~~(i) constitutes~~ and based on such other matters as it deems relevant, that such Company Acquisition Proposal constitutes, or is reasonably likely to result in, a Company Superior Proposal and (II) after consultation with its outside legal counsel, that the failure to take such action is reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (B) the Company (I) enters into a confidentiality agreement with such Person with use and disclosure limitations and other material terms that are no more favorable to such Person than those contained in the Confidentiality Agreement and (II) has complied with Section 5.4(e); and (iii) subject to compliance by the Company with Section 5.4(f), (A) withdrawing (or amending or modifying in a manner adverse to Parent), or publicly proposing to withdraw (iior to amend or modify in a manner adverse to Parent), the approval, recommendation or declaration of advisability by the Company Board or any committee thereof (as the case may be) ~~would reasonably be expected to result~~of this Agreement, ~~after~~ the ~~taking of any of~~ Merger or the transactions contemplated hereby (the actions referred to in ~~either of~~ this clause (xA) being collectively referred to herein as a “Company Adverse Recommendation Change”), (B) recommending, adopting, approving or submitting to its stockholders, or proposing publicly to recommend, adopt, approve or submit to its stockholders, any Company Acquisition Proposal (the actions referred to in this clause (B) being collectively referred to as a “Company Acquisition Proposal Recommendation”), or (yC) ~~below~~entering into any agreement, including any agreement in ~~a Company Superior Proposal~~principle, ~~then in either event (if the Company Competing Proposal did not result from a material breach~~ letter of ~~Section 5.3(a)) the Company may take the following actions: (x) furnish nonpublic information~~ intent or understanding, acquisition or merger agreement, option agreement, joint venture agreement, partnership agreement or similar agreement, arrangement or understanding which constitutes, relates to, is intended to ~~the Person making such Company Competing Proposal, if, and only if, prior~~ lead to ~~so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions~~ or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would could reasonably be expected to lead to a Company ~~Competing~~ Acquisition Proposal (other than a Confidentiality Agreement contemplated by Section 5.4(d)(ii)(B)(I)) (each a “Company Acquisition Agreement”). For the avoidance of doubt, the Parties acknowledge and agree that a Company Adverse Recommendation Change may or may not involve a Company Acquisition Proposal~~, or any initial inquiry or request for nonpublic information relating to~~ . (e) If the Company or any Company ~~Subsidiary by any~~ Representative receives a request for information from a Person who has made an unsolicited, bona fide, written Company Acquisition Proposal after the date of this Agreement, and the Company is permitted to provide such Person with information pursuant to this Section 5.4, the Company will provide to Parent a copy of the confidentiality agreement with such Person promptly upon its execution and provide to Parent a list of, and copies of, all information provided to such Person as promptly as practicable after its delivery to such Person and promptly provide Parent with access to all information to which such Person was provided access, in each case only to the extent not previously provided to Parent. The Company shall promptly provide notice to Parent, in writing, of the receipt of any Company Acquisition Proposal or ~~would~~ any inquiry with respect to or that could reasonably be expected to ~~make any~~ lead to a Company ~~Competing Proposal. Such~~ Acquisition Proposal (but in no event more than 24 hours after the receipt thereof), which notice shall ~~be made orally and confirmed in writing, and shall indicate~~ include the identity of the Person or group requesting such information or making ~~the Company Competing Proposal,~~ such inquiry or ~~request or with whom the~~ Company ~~is engaging in discussions or negotiations,~~ Acquisition Proposal and the material terms and conditions of any such ~~proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the~~ Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Acquisition Proposal. The Company shall ~~keep~~ promptly provide Parent ~~reasonably informed~~ with copies of any written changes to any Company Acquisition Proposal, with written notice of material changes in the status of any Company Acquisition Proposal (including proposed changes to the status) and with written notice of any changes in the price, form of consideration, timing of payment thereof or any other material terms ~~(including any amendments or proposed amendments to such material terms)~~ of any ~~such~~ Company ~~Competing Proposal or potential Company Competing Proposal and keep Parent informed as to the nature of any information requested of the Company with respect thereto~~Acquisition Proposal. The Company shall promptly ~~(but in any event within twenty-four (24) hours)~~ provide Parent, upon receipt or delivery thereof, with copies of all material correspondence or other material documents sent or provided to ~~Parent any material nonpublic information concerning~~ the Company ~~provided to~~ by any ~~other~~ Person in connection with any Company ~~Competing~~ Acquisition Proposal ~~that was not previously~~ or sent or provided to ~~Parent. The Company shall not take any action to exempt~~ any Person ~~from~~ by the ~~restrictions on “business combinations” contained~~ Company in connection with any ~~applicable Takeover Statute or otherwise cause such restrictions not to apply~~Company Acquisition Proposal. (df) Notwithstanding anything ~~in this Section 5.3 or Section 5.5~~ herein to the contrary, ~~at any time prior to the receipt of the Company Stockholder Approval,~~ the Company Board ~~of Directors may~~ shall not (x) make a Company ~~Change of~~ Adverse Recommendation Change, (y) make a Company Acquisition Proposal Recommendation or (z) enter into any Company Acquisition Agreement relating to a Company Acquisition Proposal, unless: (i) ~~following receipt~~ The Company complies with the terms of Section 5.4(e); (ii) Promptly upon a ~~bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which~~ determination by the Company ~~Board of Directors determines in good faith~~ Board, after consultation with ~~the Company’s~~ its outside legal counsel and financial ~~advisors is~~ advisors, that (A) a material fact, event, change, development or set of circumstances (other than a Company ~~Superior Proposal,~~ Acquisition Proposal occurring or ~~(ii) as a result of a material development or change in circumstances that occurs or arises~~ arising after the date of this ~~Agreement~~ Agreement) that was not ~~known, or~~ known to the Company Board nor reasonably foreseeable by the Company Board ~~of Directors~~ as of or prior to the date of this Agreement ~~(provided, however, that (A) in no event shall the receipt, existence or terms of~~ requires a Company ~~Competing Proposal~~ Adverse Recommendation Change or ~~any matter relating thereto or consequence thereof constitute such an intervening event and~~ (B) ~~in no event shall any event~~ a Company Acquisition Proposal constitutes, or ~~events that has or have an adverse effect on the business~~is reasonably likely to result in, ~~properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as~~ a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (i), such Company ~~Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii)~~Superior Proposal, the Company ~~Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that~~promptly notifies, in ~~light~~ writing, Parent of such ~~Company Superior Proposal or intervening~~ determination and describes in reasonable detail such material fact, event, ~~the failure to take such action would be inconsistent with the duties~~ change, development or set of ~~the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i)~~circumstances, ~~the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount~~ or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of such Company Superior Proposal and the identity of the Person making such Company ~~Competing~~ Superior Proposal, ~~and during~~ as the case may be. Parent shall have four Business Days after delivery of such ~~five (5) business day period (~~written notice to submit an offer to engage in an alternative transaction or ~~subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent~~ to ~~amend~~ modify the terms and conditions of this Agreement such that the Company may proceed with this Agreement (a “Parent Revised Offer”). During such four Business Day period, the Company ~~Competing~~ and its financial and legal advisors shall negotiate in good faith exclusively with Parent to enable Parent to submit a Parent Revised Offer. Any amendment to the price or any other material term of a Company Superior Proposal ~~would no longer~~ shall require a new notice from the Company and an additional three Business Day period within which Parent may negotiate a Parent Revised Offer; (iii) The Company Board shall have determined in good faith, after consultation with its financial advisors and outside legal counsel and after considering the results of any negotiations with Parent and any Parent Revised Offer, that the failure to take such action is reasonably likely to be inconsistent with its fiduciary duties under applicable Law and, in the case of a Company Acquisition Proposal Recommendation or a proposed entry into a Company Acquisition Agreement, that the applicable Company Acquisition Proposal continues to constitute a Company Superior Proposal, ; and (iv) Concurrently with making such Company Adverse Recommendation Change or ~~(ii) under Section 5.3(d)(ii)~~Company Acquisition Proposal Recommendation or entering into such Company Acquisition Agreement, the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of terminates this Agreement ~~in a manner that would obviate the need~~ pursuant to ~~effect a Company Change of Recommendation~~Section 7.1(d)(iii). (fg) Nothing contained in this ~~Agreement~~ Section 5.4 shall prohibit the Company or the Company Board ~~of Directors~~ from ~~(i)~~ taking and disclosing to the ~~Company’s~~ stockholders of the Company a position ~~contemplated by Rules~~ with respect to a Company Acquisition Proposal pursuant to Rule 14d-9 and 14e-2(a) promulgated under the Exchange Act or ~~(ii)~~ from making any ~~disclosure~~ similar disclosure, in either case to ~~its stockholders if~~ the extent the Company ~~Board of Directors has reasonably determined in good faith~~ determines after consultation with ~~the Company’s~~ outside legal counsel that ~~the~~ failure to ~~do so~~ make such disclosure would ~~be inconsistent with the duties~~ constitute a violation of ~~the members of the Company Board of Directors under~~ applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) ~~References in~~ All notices to be given by the Parties under this Section ~~5.3 to~~ 5.4 shall be given by facsimile transmission in accordance with Section 8.3 (which notice shall be effective as of the ~~“Company Board~~ day of ~~Directors” shall mean~~ transmission if transmitted on or before 5:00 p.m. U.S. Central Time on the ~~Company Board~~ date of ~~Directors or~~transmission, to otherwise the ~~extent applicable, a duly authorized committee thereof~~next day after transmission).

Appears in 2 contracts

Samples: Merger Agreement (Integrated Electrical Services Inc), Merger Agreement (Miscor Group, Ltd.)

Appears in 2 contracts

Samples: Merger Agreement (Questcor Pharmaceuticals Inc), Merger Agreement (Mallinckrodt PLC)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the ~~Effective~~ Acceptance Time or the date, if any, on which this Agreement is validly terminated pursuant to Section ~~8.1~~9.1, and except as otherwise specifically provided for in this Agreement, the Company agrees that it shall not (and shall not permit any Company Subsidiary to), and that it shall ~~cause~~ not authorize or knowingly permit its directors, ~~officers~~ officers, employees and ~~employees not to, and that it shall direct and use its reasonable best efforts to cause its~~ other Representatives ~~not~~ to~~, directly or indirectly~~: (i) solicit, initiate or knowingly encourage or knowingly facilitate ~~(including by way of furnishing information), or engage in discussions or negotiations regarding,~~ any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer ~~(including any inquiry, proposal or offer to its stockholders)~~ which constitutes or would be reasonably expected to lead to ~~a Company Competing~~ an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary in connection ~~with a Company Competing~~ with, an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or recommend, or propose ~~publicly~~ to approve or recommend, any ~~Company Competing Proposal,~~ Acquisition Proposal (~~vi) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent,~~ other than the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (xiv) enter into any letter of ~~intent~~ intent, merger agreement, purchase agreement, joint venture agreement or similar document relating to, or any agreement or commitment providing for, any ~~Company Competing~~ Acquisition Proposal (other than ~~(x)~~ an Acceptable Confidentiality Agreement entered into in accordance with the terms of this Section ~~5.3(b~~6.2), (v) take any action to make any Takeover Statute inapplicable to any Person or any Acquisition Proposal, other than Parent or any Parent Subsidiary, the Offer and the Merger, (yvi) ~~in accordance with Section 8.1(i))~~otherwise make any Change of Recommendation, or (xivii) ~~resolve or~~ agree to do any of the ~~foregoing~~ foregoing. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiaries and the Company’s Representatives may in any event (A) seek to clarify and understand the terms and conditions of any ~~act described in clauses~~ inquiry or proposal made by any Person to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to an Acquisition Proposal or a Superior Proposal and (vB) ~~through (ix) above~~inform a Person that has made or, ~~a “~~to the knowledge of the Company, is considering making an Acquisition Proposal of the provisions of this Section 6.2. Subject to Section 6.2(b), the Company ~~Change of Recommendation”). The~~ and its officers and directors shall, and the Company shall instruct the Company’s Representatives, the Company Subsidiaries and their Representatives to, immediately ~~cease,~~ cease all discussions and ~~cause its directors, officers and employees to cease, and shall direct and use its reasonable best efforts to cause its other Representatives to immediately cease, any and all existing discussions or~~ negotiations with any ~~parties (or provision of any nonpublic information to any parties) conducted heretofore~~ Persons that may be ongoing with respect to ~~any Company Competing Proposal~~ an actual or potential ~~Company Competing Proposal. The Company shall~~ Acquisition Proposal and promptly ~~inform its Representatives~~ request each such Person to return or destroy all confidential information furnished to such Person on behalf of the ~~Company’s obligations under this Section 5.3. For purposes of this Section 5.3, the term “Person” means~~ Company in connection with any ~~Person~~ such actual or ~~“group,” as used in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries~~potential Acquisition Proposal. (b) Notwithstanding the limitations set forth in Section ~~5.3(a~~6.2(a), but subject to compliance with Sections 6.2(c) and Section 6.2(e) hereof, if the Company receives, following the date hereof but prior to the ~~Company Stockholder Approval being obtained~~Acceptance Time, ~~a bona fide,~~ an unsolicited, written Acquisition Proposal from any Person that did not result from a breach by the Company ~~Competing Proposal, which~~ of Section 6.2(a) and that the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors (i) constitutes a ~~Company~~ Superior Proposal or (ii) would reasonably be expected to ~~result, after the taking of any of the actions referred to in either of clause (x) or (y) below,~~ result in a ~~Company~~ Superior Proposal, then in either event ~~(if the Company Competing Proposal did not result from a material breach of Section 5.3(a))~~ the Company may take the following actions: (x) furnish nonpublic information to the Person making such ~~Company Competing~~ Acquisition Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the ~~Company Competing~~ Acquisition Proposal. (c) ~~The~~ From and after the date hereof, the Company shall notify Parent orally and in writing promptly (~~but~~ and, in ~~no event later than twenty~~any event, within forty-~~four~~ eight (2448) hours) after receipt of any ~~Company Competing~~ Acquisition Proposal, any ~~initial~~ proposals or inquiries that would reasonably be expected to lead to ~~a Company Competing~~ an Acquisition Proposal, or any ~~initial~~ inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any ~~Company Competing~~ Acquisition Proposal. Such notice ~~shall be made orally and confirmed in writing, and~~ shall indicate the identity of the Person making the ~~Company Competing~~ Acquisition Proposal, inquiry or ~~request or with whom the Company is engaging in discussions or negotiations~~request, and the material terms and conditions of any such proposal or offer ~~and~~ or the nature of the information requested pursuant to such inquiry or ~~request. In addition, the Company~~ request and shall ~~promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies~~ attach a copy of any written ~~documentation relating~~ Acquisition Proposal (or summary of the terms of any oral Acquisition Proposal) and related materials provided to ~~a Company Competing Proposal or potential Company Competing Proposal which is received by~~ the Company ~~from any Person (~~or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposalits Representatives. The Company shall keep Parent reasonably informed of the status (including by providing notice of any meeting of the Company Board of Directors at which the Company Board of Directors considered any Acquisition Proposal as soon as practicable (including prior to such meeting if practicable) and, in any event, within twenty-four (24) hours thereof) and material terms (including any amendments or proposed amendments to such material terms) of any such ~~Company Competing~~ Acquisition Proposal or potential ~~Company Competing~~ Acquisition Proposal (including promptly after receipt providing to Parent copies of any additional or revised written proposals or indications of intent) and keep Parent reasonably informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly ~~(but in any event within twenty-four (24) hours)~~ provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any ~~Company Competing~~ Acquisition Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section ~~5.3 or Section 5.5~~ 6.2 to the contrary, but subject to Section 6.2(e), at any time prior to the ~~receipt of the Company Stockholder Approval~~Acceptance Time, the Company Board of Directors may (i) make a ~~Company~~ Change of Recommendation in connection with an Intervening Event (~~i) following receipt of~~ other than for a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal~~, or (ii~~) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside financial advisors and outside legal ~~counsel that~~counsel, ~~in light of such Company Superior Proposal or intervening event, the~~ that failure to take such action would be ~~inconsistent with the duties of the members~~ reasonably likely to result in a breach of the Company Board of ~~Directors~~ Directors’ fiduciary duties under applicable ~~Law~~ Law, or (ii) make a Change of Recommendation and cause the Company ~~complies~~ to terminate this Agreement pursuant to Section 9.1(g) in order to enter into an definitive agreement in connection with ~~Section 5.3(e)~~an unsolicited Acquisition Proposal, which the Company Board of Directors has determined in good faith, after consultation with the Company’s outside legal and financial advisors, in light of such Superior Proposal, failure to take such action would be reasonably likely to result in a breach of the Company Board of Directors’ fiduciary duties under applicable Law. (e) Prior to the Company taking any action permitted (i) under Section ~~5.3(d)(i~~6.2(d)(i), (A) the Company shall provide Parent with ~~five~~ three (53) business days’ prior written notice (advising Parent that it ~~being understood~~ intends to effect a Change of Recommendation and ~~agreed that any material amendment to~~ specifying, in reasonable detail, the ~~amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice~~ reasons therefor, and ~~an additional~~ during such three (3) business day period, the Company shall make its Representatives available to discuss and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement, and (B) at the end of the three (3) business day period, the Company Board of Directors determines in good faith that the failure to make a Change of Recommendation, in light of such Intervening Event and taking into account any adjustments to the terms and conditions of this Agreement agreed to or proposed by Parent, as a result of any discussions or negotiations, would be reasonably likely to result in a breach of the Company Board of Directors’ fiduciary duties under applicable Law, or (ii) under Section 6.2(d)(ii), (A) the Company shall provide Parent with three (3) business days’ prior written notice advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the ~~Company Competing Proposal~~Acquisition Proposal and attaching the most current draft of any written agreement providing for the transactions contemplated by such Acquisition Proposal (including all ancillary agreements and any financing commitments), and during such ~~five (5) business day period (or subsequent~~ three (3) business day period), the Company shall ~~consider~~ make its Representatives available to discuss and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such ~~Company Competing~~ Acquisition Proposal would no longer constitute a ~~Company~~ Superior Proposal, or and (iiB) ~~under Section 5.3(d)(ii),~~ at the ~~Company shall provide Parent with five~~ end of the three (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (53) business day period, the Company ~~shall consider and negotiate~~ Board of Directors determines in good faith that the failure to make a Change of Recommendation, after taking into account any ~~proposal by Parent~~ adjustments to ~~amend~~ the terms and conditions of this Agreement agreed to or proposed by Parent as a result of any discussions or negotiations, would be reasonably likely to result in a ~~manner~~ breach by the Company Board of Directors of its fiduciary duties under applicable Law; provided, however, each time a material modification to the terms of an Alternative Proposal determined to be a Superior Proposal is made (it being understood and agreed that ~~would obviate~~ any amendment to the ~~need~~ financial terms or other material terms shall be deemed to ~~effect~~ be a material modification), the Company ~~Change~~ shall notify Parent of ~~Recommendation~~such modification and the time period set forth in Section 6.2(e)(ii)(B) shall recommence and be extended for three (3) business days from the day of such notification. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act, or taking and disclosing to ~~the Company’s~~ its stockholders a position contemplated by ~~Rules~~ Rule 14e-2(a), or making a statement contemplated by Rule 14d-9 ~~and 14e-2(a~~under the Exchange Act or Item 1012(a) of Regulation M-A promulgated under the Exchange ~~Act~~ Act, or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be ~~inconsistent with the duties of the members~~ reasonably likely to result in a breach of the Company Board of ~~Directors~~ Directors’ fiduciary obligations to the Company’s stockholders under applicable Law; provided that this Section ~~5.3(f~~6.2(g) shall not permit the Company Board of Directors to make a ~~Company~~ Change of Recommendation except to the extent permitted by Section ~~5.3(d~~6.2(d) or Section ~~5.3(e~~6.2(e)~~. (g~~. For the avoidance of doubt, any “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) ~~No Company~~ under the Exchange Act shall not constitute a Change of ~~Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting~~Recommendation. ~~(h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.~~

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Fairchild Semiconductor International Inc), Agreement and Plan of Merger (On Semiconductor Corp)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company agrees that it shall not (and shall not permit any Company Subsidiary to), and that it shall ~~cause its directors, officers and employees not to, and that it shall~~ direct and use its reasonable best efforts to cause its ~~other~~ and their respective Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly encourage ~~or knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding,~~ any ~~inquiry, proposal or offer~~inquiry with respect to, or the ~~making,~~ making or submission ~~or announcement~~ of any inquiry, proposal or offer (including any inquiry, proposal or offer to its ~~stockholders~~shareholders) which constitutes or would be reasonably expected to lead to to, a Company Competing Proposal, ; (ii) participate in any discussions or negotiations ~~regarding~~regarding a Company Competing Proposal with, or furnish ~~to any Person~~ any nonpublic information ~~relating to the Company or any Company Subsidiary~~ in ~~connection with~~ furtherance of a Company Competing ~~Proposal~~Proposal to, any Person that has made or, to the Company’s knowledge, is considering making a Company Competing Proposal (except to notify such Person as to the existence of the provisions of this Section 5.3); or (iii) ~~engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties of the members of the Company Board of Directors under applicable Law,~~ waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective ~~affiliates~~Affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or ~~obligation~~obligation (provided that the Company shall not be required to take, or be prohibited from taking, any action otherwise prohibited or required under this subclause (iii) if the Company Board of Directors determines in good faith (after consultation with the Company’s outside legal advisors) that such action or inaction would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law). The Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Company Competing Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Competing Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. (b) Notwithstanding the limitations set forth in Section 5.3(a), if the Company receives a written Company Competing Proposal and the Company Board of Directors determines in good faith (after consultation with the Company’s financial advisors and outside legal counsel) that (i) such Company Competing Proposal, inquiry or proposal either constitutes a Company Superior Proposal or could reasonably be expected to result in a Company Superior Proposal and (ii) the failure to take the actions described in clauses (A) and (B) below would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, and which Company Competing Proposal, inquiry or proposal was made after the date of this Agreement and did not otherwise result from a breach of this Section 5.3, the Company may take any or all of the following actions: (A) furnish nonpublic information to the third party making or intending to make such Company Competing Proposal (provided that all such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such Person(s)), if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement that includes terms that are no less restrictive of such Person than the terms contained in the Confidentiality Agreement and (B) engage in discussions or negotiations with the third party with respect to such Company Competing Proposal. The Company (1) shall promptly (and in any event within twenty-four (24) hours of receipt) notify Parent orally and in writing of the receipt of any Company Competing Proposal or any initial communication or proposal that may reasonably be expected to lead to a Company Competing Proposal and shall, in the case of any such notice to Parent as to receipt of a Company Competing Proposal or such a proposal, set forth the material terms and conditions of such Company Competing Proposal or such proposal (including any changes to such material terms and conditions) and the identity of the Person making any such Company Competing Proposal and (2) thereafter shall promptly keep Parent reasonably informed on a reasonably current basis of any material change to the terms and status of any such Company Competing Proposal. Without limiting the generality of clause (2) of the preceding sentence, the Company shall provide to Parent as soon as reasonably practicable after receipt or delivery thereof (and in any event within twenty-four (24) hours of receipt or delivery) copies of any written Company Competing Proposal and all written material received by the Company or any Company Subsidiary from the Person making a Company Competing Proposal (or such Person’s Representatives) that is material to understanding such Company Competing Proposal and of all written non-public material provided by the Company or any Company Subsidiary to the Person making a Company Competing Proposal (or such Person’s Representatives) that was not previously provided to Parent and is related to such Company Competing Proposal or is being provided pursuant to the confidentiality agreement executed by the Company and such Person, including draft agreements or term sheets received in connection therewith. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any confidentiality or other agreement with any Person subsequent to the date of this Agreement that prohibits the Company from complying with its obligations under this Agreement, including providing such information to Parent. (c) Except as set forth in Sections 5.3(d), (ve) ~~approve~~ and (f), neither the Company Board of Directors nor any committee thereof shall (i) (A) withdraw or ~~recommend~~fail to make when required pursuant to this Agreement (or qualify or modify in any manner adverse to Parent), propose publicly to withdraw or fail to make when required pursuant to this Agreement (or qualify or modify in any manner adverse to Parent) or fail to include in the Joint Proxy Statement/Prospectus, the Company Board Recommendation, or (B) approve, recommend or declare advisable, or propose publicly to ~~approve~~ approve, recommend or ~~recommend~~declare advisable, any Company Competing Proposal (any action in this subclause (i) being referred to as a “Company Change of Recommendation”) (it being agreed that (x) no “stop, look and listen” communication pursuant to Rule 14d-9(f) of the Exchange Act in and of itself shall constitute a Company Change of Recommendation and (y) the provision by the Company to Parent of notice or information in connection with a Company Competing Proposal or Company Superior Proposal as required or expressly permitted by this Agreement shall not, in and of itself, constitute a Company Change of Recommendation) or (ii) cause or allow the Company or any Company Subsidiary to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, transaction agreement, implementation agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement constituting or with respect to, or that would reasonably be expected to lead to, any Company Competing Proposal, ~~(vi) withdraw, change, amend, modify~~ or ~~qualify~~requiring, or ~~otherwise propose publicly~~ reasonably expected to ~~withdraw~~cause, ~~change~~the Company to abandon, ~~amend~~terminate, ~~modify~~ delay or ~~qualify~~fail to consummate the Merger (other than a confidentiality agreement as contemplated by Section 5.3(b)). (d) Nothing in this Agreement shall prohibit or restrict the Company Board of Directors, at any time prior to obtaining the Company Shareholder Approval, from making a Company Change of Recommendation if the Company Board of Directors has concluded in good faith (after consultation with the Company’s financial advisors and outside legal counsel) (i) that a ~~manner adverse~~ Company Competing Proposal constitutes a Company Superior Proposal and (ii) that the failure to make a Company Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company shall have provided prior written notice to Parent, at least three (3) business days in advance, of the Company Board ~~Recommendation~~of Directors’ intention to make such Company Change of Recommendation (provided, that in the event of a subsequent modification of the material terms and conditions of such Company Superior Proposal, such period shall be reduced to two (~~vii~~2) ~~within~~ business days); and provided, further, that the ~~earlier~~ Company Board of Directors shall take into account any changes to the terms of this Agreement proposed by Parent in response to such prior written notice or otherwise, and during such three (x3) ~~five~~ business day period or two (52) business day period, as applicable, the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement proposed by Parent; and provided, further, that if any Company Competing Proposal is received less than three (3) business days or two (2) business days, as applicable, prior to the Company Special Meeting, the three (3) business day period or two (2) business day period, as applicable, contemplated in this Section 5.3(d) shall be shortened such that it will expire as of the close of business on the day preceding the Company Special Meeting. (e) Nothing in this Agreement shall prohibit or restrict the Company Board of Directors, in response to a ~~tender or exchange offer or take-over bid relating~~ Company Intervening Event, from making a Company Change of Recommendation at any time prior to ~~securities~~ obtaining the Company Shareholder Approval if the Company Board of Directors has concluded in good faith (after consultation with the Company’s financial advisors and outside legal counsel) that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company shall have provided prior written notice to Parent, at least ten (10) business days in advance, of the Company ~~having been commenced~~ Board of Directors’ intention to make such Company Change of Recommendation and the reasons therefor; and provided, further, that the Company Board of Directors shall take into account any changes to the terms of this Agreement or other mitigating factors or structural changes proposed by Parent in response to such prior written notice or otherwise, and during such ten (y10) ~~two~~ business day period the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement or other mitigating factors or structural changes proposed by Parent; and provided, further, that if any Company Intervening Event occurs less than ten (210) business days prior to the Company Special Meeting, ~~fail~~ the ten (10) business day period contemplated in this Section 5.3(e) shall be shortened such that it will expire as of the close of business on the day preceding the Company Special Meeting. Notwithstanding any Company Change of Recommendation, unless this Agreement has been terminated in accordance with Article VIII, the Company shall hold the Company Special Meeting in accordance with Section 5.5 for purposes of obtaining the Company Shareholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation. (1f) ~~publicly recommend against such tender~~ Nothing contained in this Agreement shall prohibit or ~~exchange offer~~ restrict the Company or ~~take~~the Company Board of Directors from (i) taking and disclosing to the Company shareholders a position or making a statement contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-~~over bid~~A promulgated under the Exchange Act, or other applicable Law, or (2ii) making any disclosure to the Company shareholders if in the good faith judgment of the Company Board of Directors (after consultation with the Company’s outside legal counsel), failure to so disclose and/or take would give rise to a violation of applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or any other disclosure that relates to the approval, recommendation or declaration of advisability by the Company Board of Directors with respect to a Company Competing Proposal shall be deemed to be a Company Change of Recommendation unless the Company, in connection with such disclosure, (A) publicly ~~reaffirm~~ states that the Company Board of Directors expressly rejects the applicable Company Competing Proposal or expressly reaffirms the Company Board Recommendation or (~~if previously made by such time), (viii~~B) ~~after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing~~ does not publicly state that the Company Board of ~~Directors’ recommendation that the stockholders~~ Directors recommends acceptance of the applicable Company ~~reject~~ Competing Proposal (provided that this clause (B) shall apply only if such ~~tender or exchange offer in accordance with~~ disclosure is made at a time when the ~~timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement~~ Company has provided notice to Parent of its intention to make a Company ~~Competing Proposal, fail to reaffirm publicly~~ Change of Recommendation and the Company Board ~~Recommendation~~ of Directors is not yet permitted to effect such Company Change of Recommendation, provided, further, that if, within ~~the earlier of (x) five (5) business days after such public disclosure or public announcement and (y)~~ two (2) business days ~~prior to~~ following the date on which the Company ~~Special Meeting, (x) enter into any letter~~ Board of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i)), or (xi) resolve or agree Directors is permitted to ~~do any of the foregoing (any act described in clauses (v) through (ix) above, a “~~effect such Company Change of Recommendation”, the Company Board of Directors does not expressly reaffirm the Company Board Recommendation, the Company Board of Directors shall thereupon be deemed to make a Company Change of Recommendation). The Company shall immediately cease, and cause its directors, officers and employees to cease, and shall direct and use its reasonable best efforts to cause its other Representatives to immediately cease, any and all existing discussions or negotiations with any parties . (~~or provision of any nonpublic information to any parties~~g) conducted heretofore with respect to any Company Competing Proposal or potential Company Competing Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3. For purposes of this Section 5.3, (i) the term “Person” means any Person or “group,” as used in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries~~. (b) Notwithstanding the limitations set forth in Section 5.3(a)~~, if the Company receives, prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and ~~financial advisors (i) constitutes a Company Superior Proposal or~~ (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Company Superior Proposal, then in either event (if the Company Competing Proposal did not result from a material breach of Section 5.3(a)) the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Proposal and keep Parent informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section 5.3 or Section 5.5 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may make a Company Change of Recommendation (i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that, in light of such Company Superior Proposal or intervening event, the failure to take such action would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 references to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 2 contracts

Samples: Merger Agreement (TYCO INTERNATIONAL PLC), Merger Agreement (Johnson Controls Inc)

Solicitation by the Company. (a) From and after the 30th day following the date of this ~~Agreement until~~ Agreement, neither the ~~earlier~~ Company nor any of its Subsidiaries nor any of the ~~Effective Time or the date~~officers and directors of any of them shall, ~~if any, on which this Agreement is terminated pursuant to Section 8.1,~~ and the Company ~~agrees that it shall not (and shall not permit any Company Subsidiary to), and that it shall cause its directors, officers and employees not to, and that it~~ shall direct and use its reasonable best efforts to cause its ~~other Representatives~~ and its Subsidiaries' employees, agents and representatives, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries (the Company, its Subsidiaries and their respective officers, directors, employees, agents and representatives being the "Company Representatives") not to, directly or indirectly: , initiate, solicit or encourage any inquiries (~~i) solicit, initiate or knowingly encourage or knowingly facilitate (including~~ by way of furnishing ~~information),~~ information or ~~engage in discussions or negotiations regarding, any inquiry, proposal or offer,~~ otherwise) or the ~~making, submission or announcement~~ making of any ~~inquiry,~~ proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Competing Proposal, (ii) participate in any negotiations regarding, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary in connection with a Company Competing Proposal, (iii) engage in discussions with any Person with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving it, or any ~~Company Competing Proposal, (iv) except as required by the duties~~ purchase or sale of the ~~members~~ consolidated assets (including, without limitation, stock of ~~the Company Board~~ Subsidiaries) of ~~Directors under applicable Law~~it or any of its Subsidiaries, ~~waive~~taken as a whole, ~~terminate, modify~~ having an aggregate value equal to 20% or ~~release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision~~ more of ~~or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or recommend~~its market capitalization, or ~~propose publicly to approve~~ any purchase or ~~recommend, any Company Competing Proposal, (vi) withdraw, change, amend, modify or qualify~~sale of, or ~~otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a~~ tender or exchange offer for, 20% or ~~take-over bid relating~~ more of its equity securities (any such proposal or offer being referred to ~~securities of~~ as an "Acquisition Proposal"). Neither the Company ~~having been commenced~~ nor any of its Subsidiaries nor any of their respective officers and ~~(y) two (2) business days prior to~~ directors shall, and the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i)), or (xi) resolve or agree to do any of the foregoing (any act described in clauses (v) through (ix) above, a “Company Change of Recommendation”). The Company shall immediately cease, and cause its directors, officers and employees to cease, and shall direct and use its reasonable best efforts to cause the Company Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to or in contemplation of an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent either the Company or its ~~other~~ Board of Directors 39 48 from (A) taking any action, or causing the Company Representatives to take any action, within the 30 days immediately ~~cease~~following the date of this Agreement with respect to any actual or potential Acquisition Proposal, including directly or indirectly initiating, soliciting, encouraging or facilitating (including by furnishing information or otherwise) any Acquisition Proposal or entering into discussions or negotiations with any Person with respect to any Acquisition Proposal; (B) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or changing its recommendation; (C) engaging in any discussions or negotiations with or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (D) recommending such an unsolicited bona fide written Acquisition Proposal to the shareholders of the Company; provided further that the actions referred to in clause (C) shall be permissible only if and to the extent that the Board of Directors of the Company concludes in good faith (after consultation with its outside legal counsel and its financial advisor) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal, including the Person making the proposal, and would, if consummated, result in a transaction more favorable to the Company's shareholders than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"). (b) Following the 30th day after the date of this Agreement, the Company shall immediately cease and terminate any existing activities, discussions or negotiations with any parties ~~(or provision of any nonpublic information to any parties)~~ conducted heretofore with respect to any ~~Company Competing Proposal or potential Company Competing~~ Acquisition Proposal. The Company shall take the necessary steps promptly to inform ~~its Representatives~~ each Company Representative of the ~~Company’s~~ obligations ~~under this~~ undertaken in Section ~~5.3~~5.7(a). ~~For purposes~~ Following the 30th day after the date of this ~~Section 5.3~~Agreement, the ~~term “Person” means~~ Company shall notify Alcoa promptly (in any ~~Person~~ event, within 24 hours) if any such inquiries, proposals or ~~“group,” as used in Section 13(d) of the Exchange Act~~offers are received by, ~~other than~~any such information is requested from, ~~with respect to the Company, Parent~~ or any ~~Parent Subsidiaries. (b) Notwithstanding the limitations set forth in Section 5.3(a)~~such discussions or negotiations are sought to be initiated or continued with, ~~if the~~ any Company receives, prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors (i) constitutes a Company Superior Proposal or (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) belowRepresentative indicating, in ~~a Company Superior Proposal~~connection with such notice, ~~then in either event (if~~ the ~~Company Competing Proposal did not result from a material breach~~ name of ~~Section 5.3(a)) the Company may take the following actions: (x) furnish nonpublic information to the~~ such Person making such inquiry, proposal, offer or request and the substance of any such inquiries, proposals or offers. The Company ~~Competing Proposal~~thereafter shall keep Alcoa informed, ifon a reasonably current basis, of the status and ~~only if~~terms of any such inquiries, ~~prior to so furnishing~~ proposals or offers and the status of any such ~~information~~inquiries, proposals or offers and the status of any such discussions or negotiations. On the 30th day after the date of this Agreement, the Company ~~receives from~~ will promptly request each Person that has theretofore executed a confidentiality agreement in connection with its consideration of any Acquisition Proposal to return or destroy all confidential information theretofore furnished to such Person ~~an executed Acceptable Confidentiality Agreement and (y) engage in discussions~~ by or ~~negotiations with such Person with respect to~~ on behalf of the Company ~~Competing Proposal~~or any of its Subsidiaries. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to At the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity meeting of the ~~Person making the Company Competing Proposal~~Company's Board of Directors at which this Agreement was considered, ~~inquiry or request or with whom the Company is engaging in discussions or negotiations~~authorized and approved, ~~and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition~~held August 18, 1999, the ~~Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies~~ Board of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Proposal and keep Parent informed as to the nature of any information requested Directors of the Company ~~with respect thereto~~unanimously by all members present declared it advisable that the Company's stockholders approve this Agreement. ~~The Company shall promptly (but in~~ Notwithstanding any ~~event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning~~ subsequent determination by the Company provided to any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section 5.3 or Section 5.5 to the contrary, at any time prior to the receipt Board of Directors of the Company ~~Stockholder Approval~~to change such recommendation, ~~the Company Board of Directors may make a Company Change of Recommendation (i) following receipt of a bona fide~~unless it has been terminated in accordance with Section 7.1, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement ~~that was not known, or reasonably foreseeable by~~ shall be submitted to the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that, in light of such Company Superior Proposal or intervening event, the failure to take such action would be inconsistent with the duties of the members stockholders of the Company ~~Board~~ at the Special Meeting for the purpose of ~~Directors under applicable Law and~~ obtaining the Company ~~complies with Section 5.3(e). (e) Prior~~ Stockholder Approval and nothing herein shall be deemed to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company ~~from its obligations to submit the approval and adoption~~ of ~~this Agreement to a vote of its stockholders at the Company Special Meeting~~such obligation. ~~(h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.~~

Appears in 2 contracts

Samples: Merger Agreement (Alcoa Inc), Merger Agreement (Reynolds Metals Co)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company agrees that it shall not (and shall not permit any Company Subsidiary to), and that it shall cause its directors, officers and employees not to, and that it shall direct and use its reasonable best efforts to cause its other Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Competing Proposal, (ii) participate in any negotiations regarding, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary in connection with a Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or recommend, or propose publicly to approve or recommend, any Company Competing Proposal, (vi) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i)), or (xiviii) resolve or agree to do any of the foregoing (any act described in clauses (v) ~~through~~ and (ixvi) above, a “Company Change of Recommendation”). The Company shall immediately cease, and cause its directors, officers and employees to cease, and shall direct and use its reasonable best efforts to cause its other Representatives to immediately cease, any and all existing discussions or negotiations with any parties (or provision of any nonpublic information to any parties) conducted heretofore with respect to any Company Competing Proposal or potential Company Competing Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3. For purposes of this Section 5.3, the term “Person” means any Person or “group,” as used in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiaries and the Company’s Representatives may in any event inform a Person that has made or, to the knowledge of the Company, is considering making a Company Competing Proposal of the provisions of this Section 5.3. (b) Notwithstanding the limitations set forth in Section 5.3(a), if the Company receives, prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors (i) constitutes a Company Superior Proposal or (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Company Superior Proposal, then in either event ~~(if the Company Competing Proposal did not result from a material breach of Section 5.3(a))~~ the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written ~~documentation~~ proposal, offer or draft agreement relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Proposal and keep Parent reasonably informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section 5.3 or Section 5.5 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may make a Company Change of Recommendation (i) in response to a Company Intervening Event, or (ii) following receipt of a bona fide, unsolicited, written Company Competing ~~Proposal that is not withdrawn~~Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (iii), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel ~~that, in light of such Company Superior Proposal or intervening event,~~ that the failure to take such action would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with ~~five~~ three (53) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to the applicable Company Intervening Event), and during such three (3) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with three (3) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional ~~three~~ two (32) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such ~~five~~ three (53) business day period (or subsequent ~~three~~ two (32) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal~~, or (ii) under~~ . In the event the Company provides to Parent a notice contemplated by this Section ~~5.3(d)(ii~~5.3(e), then, notwithstanding anything in the ~~Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends~~ Confidentiality Agreement to ~~effect a Company Change of Recommendation and specifying, in reasonable detail~~the contrary, the ~~reasons therefor~~ term “Representatives” (~~including~~ as defined in the ~~material facts and circumstances related~~ Confidentiality Agreement) shall thereafter be deemed to ~~such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions~~ include financing sources of ~~this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation~~Parent. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 2 contracts

Samples: Merger Agreement (Willis Group Holdings PLC), Merger Agreement (Towers Watson & Co.)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, the Company agrees that it shall not (and shall not permit any Company Subsidiary to), and that it shall ~~cause its directors, officers and employees not to, and that it shall~~ direct and use its reasonable best efforts to cause its ~~other~~ and their respective Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly encourage ~~or knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding,~~ any ~~inquiry, proposal or offer~~inquiry with respect to, or the ~~making,~~ making or submission ~~or announcement~~ of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to to, a Company Competing Proposal, (ii) participate in any discussions or negotiations ~~regarding~~regarding a Company Competing Proposal with, or furnish ~~to any Person~~ any nonpublic information ~~relating to the Company or any Company Subsidiary~~ in ~~connection with~~ furtherance of a Company Competing ~~Proposal~~Proposal to, any Person that has made or, to the Company’s knowledge, is considering making a Company Competing Proposal (except to notify such Person as to the existence of the provisions of this Section 5.3), (iii) ~~engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties of the members of the Company Board of Directors under applicable Law,~~ waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective ~~affiliates~~Affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or ~~obligation,~~ obligation (~~v) approve or recommend~~provided that the Company shall not be required to take, or ~~propose publicly to approve or recommend~~be prohibited from taking, any ~~Company Competing Proposal,~~ action otherwise prohibited or required under this subclause (viiii) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of ~~Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer~~ Directors determines in ~~accordance~~ good faith (after consultation with the ~~timing requirements~~ Company’s outside legal advisors) that such action or inaction would be reasonably likely to be inconsistent with the directors’ fiduciary duties under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i)), or (xi) resolve or agree to do any of the foregoing (any act described in clauses (v) through (ix) above, a “Company Change of Recommendation”applicable Law). The Company ~~shall immediately cease, and cause its directors, officers and employees to cease~~shall, and shall ~~direct~~ cause the Company Subsidiaries and ~~use~~ its ~~reasonable best efforts~~ and their respective Representatives to, immediately cease and cause to ~~cause its other Representatives to immediately cease, any and~~ be terminated all existing discussions or negotiations with any ~~parties (or provision of any nonpublic information to any parties)~~ Person conducted heretofore with respect to any Company Competing Proposal, or any inquiry or proposal that may reasonably be expected to lead to a Company Competing Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. (b) Notwithstanding the limitations set forth in Section 5.3(a), if the Company receives a written Company Competing Proposal or ~~potential~~ inquiry or proposal from a Person who is intending to make a Company Competing Proposal and the Company Board of Directors determines in good faith (after consultation with the Company’s financial advisors and outside legal counsel) that (i) such Company Competing Proposal, inquiry or proposal either constitutes a Company Superior Proposal or could reasonably be expected to result in a Company Superior Proposal and (ii) the failure to take the actions described in clauses (A) and (B) below would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, and which Company Competing Proposal, inquiry or proposal was made after the date of this Agreement and did not otherwise result from a breach of this Section 5.3, the Company may take any or all of the following actions: (A) furnish nonpublic information to the third party making or intending to make such Company Competing Proposal (provided that all such information has previously been provided to Parent or is provided to Parent substantially concurrently with the time it is provided to such Person(s)), if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement on terms (including any “standstill” terms, which, for the avoidance of doubt, shall not include the “fall away” provisions to the “standstill” terms set forth in the Confidentiality Agreement) no less restrictive of such Person than the Confidentiality Agreement and (B) engage in discussions or negotiations with the third party with respect to such Company Competing Proposal. The Company will (1) promptly (and in any event within 24 hours of receipt) notify Parent orally and in writing of the receipt of any Company Competing Proposal or any initial communication or proposal that may reasonably be expected to lead to a Company Competing Proposal and shall, in the case of any such notice to Parent as to receipt of a Company Competing Proposal or such a proposal, set forth the material terms and conditions of such Company Competing Proposal or such proposal (including any changes to such material terms and conditions) and the identity of the Person making any such Company Competing Proposal and (2) thereafter shall promptly ~~inform its Representatives~~ keep Parent reasonably informed on a reasonably current basis of any material change to the terms and status of any such Company Competing Proposal. Without limiting the generality of clause (2) of the preceding sentence, the Company shall provide to Parent as soon as reasonably practicable after receipt or delivery thereof (and in any event within 24 hours of receipt or delivery) copies of all written material received by the Company or any Company Subsidiary from the Person making a Company Competing Proposal (or such Person’s Representatives) that is material to understanding such Company Competing Proposal and of all written material provided by the Company or any Company Subsidiary to the Person making a Company Competing Proposal (or such Person’s Representatives) that is material to understanding any counterproposal or other material substantive response by the Company to such Company Competing Proposal, including draft agreements or term sheets received in connection therewith. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any confidentiality or other agreement with any Person subsequent to the date of this Agreement that prohibits the Company from providing such information to Parent. (c) Except as set forth in Sections 5.3(d), (e) and (f) below, neither the Company Board of Directors nor any committee thereof shall (i) (A) withdraw or fail to make when required pursuant to this Agreement (or qualify or modify in any manner adverse to Parent), or propose publicly to withdraw or fail to make when required pursuant to this Agreement (or qualify or modify in any manner adverse to Parent), the Company Board Recommendation, or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Competing Proposal (any action in this subclause (i) being referred to as a “Company Change of Recommendation”) (it being agreed that (x) no “stop, look and listen” communication pursuant to Rule 14d-9(f) of the Exchange Act in and of itself shall constitute a Company Change of Recommendation and (y) the provision by the Company to Parent of notice or information in connection with a Company Competing Proposal or Company Superior Proposal as required or expressly permitted by this Agreement shall not, in and of itself, constitute a Company Change of Recommendation) or (ii) cause or allow the Company or any Company Subsidiary to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, transaction agreement, implementation agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement constituting or with respect to, or that would reasonably be expected to lead to, any Company Competing Proposal, or requiring, or reasonably expected to cause, the Company to abandon, terminate, delay or fail to consummate the Merger (other than a confidentiality agreement as contemplated by Section 5.3(b)). (d) Nothing in this Agreement shall prohibit or restrict the Company Board of Directors, at any time prior to obtaining the Company Stockholder Approval, from making a Company Change of Recommendation if the Company Board of Directors has concluded in good faith (after consultation with the Company’s ~~obligations~~ financial advisors and outside legal counsel) (i) that a Company Competing Proposal constitutes a Company Superior Proposal and (ii) that the failure to make a Company Change of Recommendation would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company shall have provided prior written notice to Parent, at least three (3) business days in advance, of the Company Board of Directors’ intention to make such Company Change of Recommendation, and provided, further, that the Company Board of Directors shall take into account any changes to the terms of this Agreement proposed by Parent in response to such prior written notice or otherwise, and during such three (3) business day period the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement proposed by Parent. (e) Nothing in this Agreement shall prohibit or restrict the Company Board of Directors, in response to a Company Intervening Event, from making a Company Change of Recommendation at any time prior to obtaining the Company Stockholder Approval if the Company Board of Directors has concluded in good faith (after consultation with the Company’s financial advisors and outside legal counsel) that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company shall have provided prior written notice to Parent, at least three (3) business days in advance, of the Company Board of Directors’ intention to make such Company Change of Recommendation and the reasons therefor, and provided, further, that the Company Board of Directors shall take into account any changes to the terms of this Agreement proposed by Parent in response to such prior written notice or otherwise, and during such three (3) business day period the Company shall engage in good faith negotiations with Parent regarding any changes to the terms of this Agreement proposed by Parent. Notwithstanding any Company Change of Recommendation, unless this Agreement has been terminated in accordance with Article VIII, the Company shall hold the Company Special Meeting in accordance with Section ~~5.3.~~ 5.5 for purposes of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation. (f) Nothing contained in this Agreement shall prohibit or restrict the Company or the Company Board of Directors from (i) taking and disclosing to the Company stockholders a position or making a statement contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or other applicable Law, or (ii) making any disclosure to the Company stockholders if in the good faith judgment of the Company Board of Directors (after consultation with the Company’s outside legal counsel), failure to so disclose and/or take would give rise to a violation of applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act that relates to the approval, recommendation or declaration of advisability by the Company Board of Directors with respect to a Company Competing Proposal shall be deemed to be a Company Change of Recommendation unless the Company, in connection with such disclosure, (A) publicly states that the Company Board of Directors expressly rejects the applicable Company Competing Proposal or expressly reaffirms the Company Board Recommendation or (B) does not publicly state that the Company Board of Directors recommends acceptance of the applicable Company Competing Proposal (provided that this clause (B) shall apply only if such disclosure is made at a time when the Company has provided notice to Parent of its intention to make a Company Change of Recommendation and the Company Board of Directors is not yet permitted to effect such Company Change of Recommendation, provided, further, that if, within two (2) business days following the date on which the Company Board of Directors is permitted to effect such Company Change of Recommendation, the Company Board of Directors does not expressly reaffirm the Company Board Recommendation, the Company Board of Directors shall thereupon be deemed to make a Company Change of Recommendation). (g) For purposes of this Section 5.3, (i) the term “Person” means any Person or “group,” as used in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries~~. (b) Notwithstanding the limitations set forth in Section 5.3(a)~~, if the Company receives, prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and ~~financial advisors (i) constitutes a Company Superior Proposal or~~ (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Company Superior Proposal, then in either event (if the Company Competing Proposal did not result from a material breach of Section 5.3(a)) the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Proposal and keep Parent informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section 5.3 or Section 5.5 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may make a Company Change of Recommendation (i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that, in light of such Company Superior Proposal or intervening event, the failure to take such action would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 references to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 1 contract

Samples: Merger Agreement (Allergan PLC)

Solicitation by the Company. (a) ~~From and after~~ Notwithstanding any provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Eastern time) on December 11, 2015 (the ~~earlier~~ “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Representatives shall have the right to, directly or indirectly through another person, (i) solicit, initiate, encourage or facilitate or assist or cooperate with respect to, any Acquisition Proposal from any person that is not an Affiliate of the ~~Effective Time~~ Company or the ~~date~~making thereof and (ii) enter into, ~~if any~~continue or otherwise participate in any discussions or negotiations with, or furnish any information or data in connection with, any Acquisition Proposal to any person that is not an Affiliate of the Company pursuant to a customary confidentiality agreement on terms, that taken as a whole, are not materially more favorable to such person than the provisions of the Confidentiality Agreement (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal) and which does not prohibit the Company from complying with its obligations under this Agreement (an “Acceptable Confidentiality Agreement”), provided, that all such information and data has previously been provided to Parent or is ~~terminated pursuant~~ provided to Parent prior to or substantially concurrent with the time it is provided to such person. No later than 24 hours after the No-Shop Period Start Date, the Company shall notify Parent in writing of the identity of each person from whom the Company has received an Acquisition Proposal prior to the No-Shop Period Start Date that has not been withdrawn and for which the Board of Directors of the Company determines in good faith (after consultation with its outside legal advisors and a financial advisor of nationally recognized reputation) constitutes or would reasonably be expected to lead to a Superior Proposal and provide to Parent (x) a copy of any such Acquisition Proposal made in writing and any other written terms or proposals provided (including financing commitments) to the Company or any of its Subsidiaries and (y) a written summary of the material terms of any such Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally). (b) Except as expressly permitted under Section ~~8.1~~4.02(a), from the date of this Agreement the Company agrees that neither it ~~shall not (and shall not permit~~ nor any ~~Company Subsidiary to)~~of its Subsidiaries shall, and ~~that it~~ the Company shall cause its ~~directors, officers~~ and ~~employees not to, and that it shall direct and use~~ its ~~reasonable best efforts to cause its other~~ Subsidiaries’ Representatives not to, directly or ~~indirectly:~~ indirectly through another person, (i) solicit, initiate or knowingly ~~encourage~~ encourage, or knowingly facilitate ~~(including by way~~ or knowingly induce, the making of ~~furnishing information), or engage in discussions or negotiations regarding,~~ any ~~inquiry, proposal or offer~~Acquisition Proposal, or the ~~making, submission or announcement~~ making of any inquiry, offer or proposal ~~or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or~~ that would reasonably be ~~reasonably~~ expected to lead ~~to a Company Competing~~ to, any Acquisition Proposal, (ii) enter into, facilitate, continue or otherwise participate or engage in any discussions or negotiations regarding, or furnish to any ~~Person~~ person any ~~nonpublic~~ information ~~relating~~ or data or afford access to the business, directors, officers, employees, properties, facilities, assets, contracts, books or records of the Company or any ~~Company Subsidiary~~ of its Subsidiaries to any person in connection with ~~a Company Competing~~ any Acquisition Proposal, (iii) ~~engage in discussions with~~ enter into any ~~Person with respect~~ agreement relating to any ~~Company Competing Proposal~~Acquisition Proposal (other than an Acceptable Confidentiality Agreement prior to the No-Shop Period Start Date or in accordance with this Section 4.02(b)), (iv) ~~except as required by the duties of the members of the Company Board of Directors under applicable Law,~~ waive, terminate, modify or ~~release any Person (other than Parent, Merger Sub and their respective affiliates) from~~ fail to enforce any provision of ~~or grant any permission, waiver or request under~~ any “standstill” or similar ~~agreement~~ obligation of any person (other than Parent) with respect to the Company or ~~obligation~~any of its Subsidiaries (unless the Company concludes in good faith, after consultation with its outside legal advisors, that the failure to so waive, terminate, modify or fail to enforce would be inconsistent with its fiduciary duties under applicable Law), (v) ~~approve~~ take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or ~~recommend~~other similar anti-takeover statute or regulation, or ~~propose publicly~~ any restrictive provision of any applicable anti-takeover provision in the Company Articles or Company Bylaws, inapplicable to ~~approve~~ any transactions contemplated by any Acquisition Proposal or ~~recommend, any Company Competing Proposal,~~ (vi) ~~withdraw, change, amend, modify or qualify~~authorize any of, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i)), or (xi) resolve commit or agree to do any of the ~~foregoing (~~foregoing. Without limiting the foregoing, it is agreed that any ~~act described~~ violation of the restrictions set forth in ~~clauses (v~~the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 4.02(b) ~~through (ix) above~~by the Company. On the No-Shop Period Start Date, ~~a “~~the Company ~~Change of Recommendation”). The Company shall immediately cease, and cause its directors, officers and employees to cease~~shall, and shall ~~direct and use its reasonable best efforts to~~ cause its ~~other~~ Subsidiaries and its and their Representatives to, immediately cease and cause to ~~immediately cease, any and~~ be terminated all existing discussions or negotiations with any ~~parties (or provision of any nonpublic information to any parties)~~ person conducted ~~heretofore~~ theretofore with respect to any Company Competing Proposal or potential Company Competing Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3. For purposes of this Section 5.3, the term “Person” means any Person or “group,” as used in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries. (b) Notwithstanding the limitations set forth in Section 5.3(a), if the Company receives, prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors (i) constitutes a Company Superior Proposal or (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Company Superior Proposal, then in either event (if the Company Competing Proposal did not result from a material breach of Section 5.3(a)) the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Acquisition Proposal and ~~keep Parent informed as to~~ request the ~~nature~~ prompt return or destruction of ~~any~~ all confidential information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning the Company provided to any other Person previously furnished in connection ~~with any Company Competing Proposal that was not previously provided to Parent~~therewith. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section ~~5.3 or Section 5.5~~ 4.02(b) to the contrary, at any time prior to obtaining the ~~receipt~~ Company Shareholder Approval, in response to a bona fide written Acquisition Proposal from a person that is not an Affiliate of the Company ~~Stockholder Approval,~~ that the ~~Company~~ Board of Directors ~~may make a Company Change~~ of ~~Recommendation (i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which~~ the Company ~~Board of Directors~~ determines in good faith (after consultation with ~~the Company’s~~ its outside legal advisors and a financial ~~advisors is a Company Superior Proposal, or (ii~~advisor of nationally recognized reputation) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had constitutes or would reasonably be expected to ~~have~~ lead to a ~~Parent Material Adverse Effect~~Superior Proposal, and which Acquisition Proposal was not solicited after the No-Shop Period Start Date in violation of this Section 4.02(b), ~~if and only if~~the Company may, subject to compliance with this Section 4.02, (x) furnish information or data with respect to the Company and its Subsidiaries to the person that is not an Affiliate of the Company making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the ~~case~~ person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal. Notwithstanding the occurrence of ~~clause (i)~~the No-Shop Period Start Date, ~~such~~ if the Company ~~Competing Proposal was received after~~ has received, following the date hereof and ~~did not result from~~ prior to the No-Shop Period Start Date, a ~~breach~~ written Acquisition Proposal that the Board of Directors of the ~~provisions~~ Company determines in good faith (after consultation with its outside legal advisors and a financial advisor of ~~this~~ nationally recognized reputation) is or would reasonably be expected to lead to a Superior Proposal, the Company may continue to engage in the activities described in Section ~~5.3~~ 4.02(x) and (y) above with respect to the person who made such Acquisition Proposal and shall not be required to request the prompt return or destruction of all confidential information previously furnished in connection therewith, including with respect to any amended or new proposal submitted by such person following the No-Shop Period Start Date and prior to the obtaining the Company Shareholder Approval, in each case for so long as such Acquisition Proposal continues to qualify as the type of Acquisition Proposal for which the Company would be permitted to engage in the ~~case of clauses (i~~activities described in Section 4.02(x) and (~~ii),~~ y) above if such Acquisition Proposal had been made after the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that, in light of such Company Superior Proposal or intervening event, the failure to take such action would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e)No-Shop Period Start Date. (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 1 contract

Samples: Merger Agreement (Emc Corp)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, and except as otherwise specifically provided for in this Agreement, the Company ~~agrees that it~~ shall not (and shall ~~not permit any~~ cause the Company ~~Subsidiary to),~~ Subsidiaries and ~~that it shall cause~~ its ~~directors,~~ and their directors and officers ~~and employees~~ not to, and ~~that it~~ the Company shall ~~direct and use~~ instruct its ~~reasonable best efforts to cause its other~~ Representatives not ~~to, directly~~ to on behalf of the Company or ~~indirectly~~any Company Subsidiary: (i) ~~solicit,~~ solicit or initiate or knowingly facilitate or encourage ~~or knowingly facilitate~~ (including by way of furnishing any non-public information~~), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of~~ ) any inquiry, proposal or offer ~~(including any inquiry, proposal or offer to its stockholders) which~~ that constitutes or would be reasonably expected to lead to a Competing Proposal or engage in any discussions or negotiations with respect thereto (other than, solely in response to an inquiry not solicited in breach of this Section 5.2, informing any Person making such an inquiry of the existence of the provisions contained in this Section 5.2) (provided, however, that the Company and its Representatives may make inquiries of a Person making a Competing ~~Proposal~~Proposal (and its Representatives) to ascertain facts regarding, and clarify the terms of, such Competing Proposal for the purpose of the Company Board informing itself about such Competing Proposal and the Person making it); (ii) ~~participate in~~ provide any ~~negotiations~~ non-public information regarding, or ~~furnish~~ access to ~~any Person any nonpublic information relating to~~ the properties, personnel, books and records of, the Company or any Company Subsidiary to any Person or “group” (as defined under Section 13(d) of the Exchange Act) in connection with or under circumstances that would reasonably be expected to lead to a ~~Company~~ Competing Proposal, except as permitted by Section 5.2(c) below; (iii) engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or publicly recommend, or propose publicly to approve or recommend, any ~~Company~~ Competing Proposal, ; (viiv) ~~withdraw, change, amend, modify~~ withdraw or ~~qualify,~~ change or ~~otherwise propose publicly to withdraw, change, amend, modify or qualify,~~ qualify in a manner adverse to Parent, the Company Board Recommendation or fail to include the Company Board Recommendation in the Proxy Statement when disseminated to the shareholders of the Company; (v) fail to publicly reaffirm the Company Board Recommendation, ~~(vii)~~ or publicly recommend against acceptance of, within ~~the earlier of (x)~~ five (5) ~~business days~~ Business Days after receipt of a written request by Parent following a Competing Proposal (or material modification thereto) becoming publicly known or the commencement of a tender or exchange offer (or ~~take-over bid relating to~~ material modification thereto) for any outstanding shares or other securities of the ~~Company having been commenced and (y) two (2) business days prior to the Company Special Meeting~~Company, ~~fail to (1)~~ or publicly recommend against acceptance of such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal~~, fail to reaffirm publicly the Company Board Recommendation within the earlier of~~ ; (~~x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x~~vi) enter into any letter of intent (whether binding or ~~similar document relating to~~non-binding), ~~or any~~ agreement or commitment providing ~~for~~for any Competing Proposal, ~~any Company Competing Proposal (other than (x~~except as permitted by Section 5.2(c) ~~an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)~~ below; or (~~y) in accordance with Section 8.1(i)), or (xi~~vii) resolve or agree to do any of the foregoing (any act described in clauses (iii), (iv) or (v~~) through (ix~~) above, a “Company Change of Recommendation”). Any violation of the restrictions contained in this Section 5.2(a) or Section 5.2(b) by any of the Company’s Representatives shall be deemed to be a breach of this Section 5.2(a) by the Company. The Company shall not, and shall cause each Company Subsidiary not to, enter into any Contract with any Person subsequent to the date of this Agreement that would restrict the Company’s ability to provide to Parent the information described in this ‎Section 5.2, and other than customary confidentiality agreements executed prior to the date hereof, neither the Company nor any of its Subsidiaries is currently party to any Contract that prohibits the Company from providing the information described in this ‎Section 5.2 to Parent. The Company (i) shall not, and shall cause each Company Subsidiary not to, terminate, waive, amend or modify, or grant permission under, any standstill provision in any confidentiality agreement to which it or any of its Subsidiaries is or becomes a party (other than as occurs in accordance with the terms of any such standstill provision in effect as of the date hereof), and (ii) shall, and shall cause each Company Subsidiary, to use commercially reasonable efforts to enforce such standstill provisions if it becomes aware of any breach of any such standstill provision by the party subject thereto. (b) The Company shall immediately ~~cease, and cause its directors, officers and employees to cease,~~ cease and shall ~~direct~~ instruct its Representatives and ~~use its reasonable best efforts to cause its other~~ each Company Subsidiary and their Representatives to ~~immediately~~ promptly cease, any and all existing discussions or negotiations with any ~~parties (or provision of any nonpublic information to any parties)~~ Person conducted heretofore with respect to any ~~Company~~ Competing Proposal (including, if applicable, the termination within 24 hours of access to any data room established in connection therewith). Promptly following the date of this Agreement, the Company will request that each Person (other than Parent and its Representatives) that has, prior to the date of this Agreement, executed a confidentiality agreement in connection with its consideration of acquiring the Company or ~~potential Company~~ a transaction which would be considered a Competing ~~Proposal. The Company shall~~ Proposal which has not terminated or expired pursuant to its terms to promptly ~~inform its Representatives~~ return or destroy (and confirm such destruction in writing) all non-public information furnished to such Person by or on behalf of the ~~Company’s obligations under this Section 5.3. For purposes~~ Company or any Company Subsidiary prior to the date of this ~~Section 5.3,~~ Agreement in accordance with the ~~term “Person” means any Person or “group,” as used in Section 13(d)~~ terms of ~~the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries~~such confidentiality agreement. (bc) Notwithstanding the limitations set forth in Section ~~5.3(a~~5.2(a), ~~if the Company receives~~if, prior to the Company ~~Stockholder~~ Shareholder Approval being obtained, the Company receives an unsolicited bona fide written Competing Proposal that did not arise or result from a ~~bona fide, unsolicited, written Company Competing Proposal, which~~ violation of this Section 5.2 and the Company Board ~~of Directors~~ determines in good faith after consultation with the Company’s outside legal counsel and financial ~~advisors (i)~~ advisor that such Competing Proposal constitutes a ~~Company~~ Superior Proposal or ~~(ii)~~ would reasonably be ~~expected~~ likely to ~~result, after the taking of any of the actions referred~~ lead to ~~in either of clause (x) or (y) below, in~~ a ~~Company~~ Superior Proposal, then in either event ~~(if~~ the Company ~~Competing Proposal did not result from a material breach of Section 5.3(a)) the Company may take the following actions~~and its Representatives may: (xi) furnish information (including nonpublic ~~information~~ information) to the Person making such ~~Company~~ Competing Proposal, its Representatives and its potential sources of financing, if, and only if, prior to so furnishing such information, the Company receives (or has previously received) from such Person an executed Acceptable Confidentiality ~~Agreement~~ Agreement; and (yii) engage in discussions or negotiations with such ~~Person~~ Person, its Representatives and its potential sources of financing with respect to such Competing Proposal and any changes thereto, including by making counterproposals thereto; provided, however, that in the case of any action taken pursuant to the preceding clauses (i) or (ii), the Company ~~Competing Proposal.~~ Board shall have determined in good faith (cafter consultation with outside counsel) that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties to the Company Shareholders under Israeli Law; provided, further, that the actions of the Company Board in making such determination and such determination shall not constitute a Company Change of Recommendation or a violation of this Section 5.2). The Company ~~shall notify Parent~~ will promptly (but in no event later than ~~twenty-four~~ one (241) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Proposal and keep Parent informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hoursBusiness Day) provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any ~~Company~~ Competing Proposal that was not previously provided to Parent. (d) The Company shall notify Parent promptly (but in no event later than one (1) Business Day) after the receipt of any Competing Proposal or any inquiry, indication, request or offer that would reasonably be expected to lead to a Competing Proposal and provide Parent with a copy of the Competing Proposal and any material related correspondence, documents and other written materials provided to Parent or any material modifications thereto (or if the Competing Proposal is not in writing, a written description of the material terms of the Competing Proposal), except that the Company will not be required to disclose the identity of the Third Party making the Competing Proposal, and of the Company’s intention to participate or engage in discussions or negotiations with, or furnish non-public information to, such Person, and shall in no event begin providing such information to such Person or participate or engage in such discussions or negotiations prior to providing such notice to Parent. The Company shall ~~not take~~ keep Parent promptly and reasonably informed of the status of discussions relating to any ~~action to exempt~~ such Competing Proposal or any ~~Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply~~material modifications thereto. (de) Notwithstanding anything in this Section ~~5.3~~ 5.2 or Section ~~5.5~~ 5.3 to the contrary, at any time prior to the receipt of the Company ~~Stockholder~~ Shareholder Approval, the Company Board ~~of Directors~~ may make a Company Change of Recommendation ~~(i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines~~ in ~~good faith after consultation with the Company’s outside legal and financial advisors is~~ response to a Company ~~Superior Proposal~~Intervening Event if, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (~~x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (~~i) ~~and (ii),~~ the Company Board ~~of Directors~~ has determined in good faith after consultation with the Company’s outside legal counsel ~~that, in light of such Company Superior Proposal or intervening event,~~ and financial advisor that the failure to ~~take such action~~ make a Company Change of Recommendation would be inconsistent with the fiduciary duties of the members of the Company Board ~~of Directors~~ under applicable Law ~~and~~ (provided, however, that the actions of the Company ~~complies~~ Board in making such determination and such determination shall not constitute a Company Change of Recommendation or a violation of this Section 5.2), (ii) the Company has provided Parent with ~~Section 5.3(e). (e) Prior~~ a written notice of such determination, providing a description of the material facts and circumstances giving rise to the Company ~~taking any action permitted (i) under Section 5.3(d)(i)~~Intervening Event, ~~the Company shall provide Parent with five (5) business days’ prior written notice (it being understood~~ and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation (provided, however, that the giving of such notice and ~~specifying~~actions of the Company Board in authorizing and disclosing (to the extent legally required) such notice shall not constitute a Company Change of Recommendation or a violation of this Section 5.2) and (iii) the Company shall have given Parent four (4) Business Days commencing on the date of Parent’s receipt of such notice to propose revisions to the terms of this Agreement or make other proposals so that such Company Intervening Event would no longer necessitate a Company Change of Recommendation, and shall have negotiated in ~~reasonable detail~~good faith with Parent (to the extent Parent desires to negotiate) with respect to such proposed revisions or other proposal, if any, the ~~reasons therefor~~ Company Board again makes the determination set forth in Section 5.2(e)(i). (f) Notwithstanding anything in this Section 5.2 or Section 5.3 to the contrary, at any time prior to the receipt of the Company Shareholder Approval, the Company Board may in response to its receipt of a bona fide written Competing Proposal from a Third Party (provided that the making of such Competing Proposal by the Third Party is not in violation of such Third Party’s standstill obligations to the Company (if any)) make a Company Change of Recommendation or terminate this Agreement to enter into a definitive written agreement providing for such Competing Proposal pursuant to Section 8.1(h) if, and only if, (i) a breach by the Company of any terms of this Agreement (including this Section 5.2) has not been the ~~material facts~~ primary cause of the making of such Competing Proposal; (ii) the Company Board has determined in good faith after consultation with the Company’s outside legal counsel and ~~circumstances related~~ financial advisor that (x) such Competing Proposal constitutes a Superior Proposal (after giving effect to ~~such~~ all of the adjustments or modifications to the terms of this Agreement which may have been offered by Parent prior to the determination by the Company Board), and ~~during~~ (y) the failure to make such ~~five (5) business day period,~~ Company Change of Recommendation or to terminate this Agreement would be reasonably likely to be inconsistent with the fiduciary duties of the members of the Company Board under applicable Law (provided, however, that the actions of the Company Board in making such determination and such determination shall ~~consider and negotiate in good faith any proposal by Parent to amend the terms and conditions~~ not constitute a Company Change of Recommendation, a violation of this ~~Agreement in~~ Section 5.2 or a ~~manner~~ termination of this Agreement), (iii) the Company has provided Parent with a written notice of such determination and that ~~would obviate~~ the ~~need~~ Company Board intends to effect a Company Change of Recommendation or that the Company intends to terminate this Agreement (provided, however, that the giving of such notice and actions of the Company Board in authorizing and disclosing (to the extent legally required) such notice shall not constitute a Company Change of Recommendation, a violation of this Section 5.2 or a termination of this Agreement) and (iv) the Company shall have given Parent four (4) Business Days commencing on the date of Parent’s receipt of such notice to propose revisions to the terms of this Agreement or make other proposals so that such Competing Proposal would cease to constitute a Superior Proposal, and shall have negotiated in good faith with Parent (to the extent Parent desires to negotiate) with respect to such proposed revisions or other proposal, if any, the Company Board again makes the determination set forth in Section 5.2(f)(i). Following receipt by Parent of a notice pursuant to Section 5.2(f)(iii) with respect to a Competing Proposal, if the financial or other material terms of such Competing Proposal are materially amended prior to the Company Board making a Company Change of Recommendation or terminating this Agreement in accordance with the foregoing sentence, the Company will deliver to Parent a new notice pursuant to Section 5.2(f)(iii) prior to the Company Board making a Company Change of Recommendation or terminating this Agreement in accordance with the foregoing sentence, provided that the period of negotiation provided in Section 5.2(f)(iii) shall instead end at 11:59 p.m. local time in Israel on the third (3rd) Business Day immediately following Parent’s receipt of such notice, but no such new notice shall shorten the original four (4) Business Day notice period. (fg) Nothing contained in this Agreement shall prohibit the Company or the Company Board ~~of Directors~~ from (i) disclosing to the Company’s ~~stockholders~~ shareholders a position contemplated by Rules 14d-9 ~~and~~ or 14e-2(a) promulgated under the Exchange Act (or any communication required under Israeli Securities Law with substantially similar content) or a position contemplated by Section 329 of the ICL, or (ii) making any disclosure to its ~~stockholders~~ shareholders if the Company Board ~~of Directors~~ has reasonably determined in good faith after consultation with the Company’s outside legal counsel and financial advisor that the failure to do so would be inconsistent with the fiduciary duties of the members of the Company Board ~~of Directors~~ under applicable Law; ~~provided~~ provided, however, that any such disclosure referred to in clauses (i) or (ii) that relates to a Competing Proposal shall be deemed to be a Company Change of Recommendation unless (x) the Company Board expressly reaffirms the Company Board Recommendation in such disclosure or (y) such disclosure is a “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(b) promulgated under the Exchange Act, or any communication under Israeli Law with substantially similar content; provided, further that this Section ~~5.3(f~~5.2(g) shall not permit the Company Board ~~of Directors~~ to make a Company Change of Recommendation except to the extent permitted by Section ~~5.3(d~~5.2(d) or Section ~~5.3(e~~5.2(f). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 1 contract

Samples: Merger Agreement (Itamar Medical Ltd.)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, and except as otherwise specifically provided for in this Agreement, the Company ~~agrees that it~~ shall not (and shall ~~not permit any~~ cause the Company ~~Subsidiary to),~~ Subsidiaries and ~~that it shall cause~~ its ~~directors,~~ and their directors and officers ~~and employees~~ not to, and ~~that it~~ the Company shall ~~direct and~~ use its reasonable best efforts to cause its other Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing nonpublic information~~), or engage in discussions or negotiations regarding,~~ ) any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) ~~which~~ that constitutes or would be reasonably expected to lead to a Company Competing Proposal, (ii) participate or engage in any negotiations ~~regarding,~~ or ~~furnish to any Person any nonpublic information relating to~~ discussions regarding the Company or any Company Subsidiary in connection with a Company Competing Proposal, (iii) ~~engage~~ in ~~discussions~~ connection with ~~any Person with respect~~ or in response to any Company Competing Proposal, disclose or furnish any nonpublic information or data to any Person concerning the Company’s business or properties or afford any Person access to its properties, books, or records, (iv) except ~~as required by~~ to the ~~duties of the members of~~ extent that the Company Board of Directors determines that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, waive, terminate, modify or release any Person (other than Parent, the Merger ~~Sub~~ Subs and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or publicly recommend, or propose publicly to approve or recommend, any Company Competing Proposal, (vi) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (vii) ~~within the earlier of (x) five (5) business days of a tender~~ execute or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made become bound by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing Proposal ~~(other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)~~ or (~~y) in accordance with Section 8.1(i)), or (xi~~viii) resolve or agree to do any of the foregoing (any act described in clauses (v) ~~through~~ or (ixvi) above, a “Company Change of Recommendation”). The Company shall immediately cease, and cause the Company Subsidiaries and its ~~directors,~~ and their directors and officers ~~and employees~~ to cease, and shall ~~direct and~~ use its reasonable best efforts to cause its other Representatives to immediately cease, any and all existing discussions or negotiations with any ~~parties~~ Person (or provision of any nonpublic information to any ~~parties~~Person) conducted heretofore with respect to any Company Competing ~~Proposal or potential Company Competing~~ Proposal~~. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3~~. For purposes of this Section 5.3, the term “Person” means any Person or “group,” as ~~used~~ defined in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiaries and the Company’s Representatives may in any event inform a Person that has made or, to the knowledge of the Company, is considering making a Company Competing Proposal of the provisions of this Section 5.3. The Company shall use its reasonable best efforts to promptly inform its Representatives of the Company’s obligations under this Section 5.3. The Company acknowledges and agrees that, in the event that any Representative of the Company or any Company Subsidiary takes any action that if taken by the Company would be a breach of this Section 5.3, the taking of such action by such Representative shall be deemed to constitute a breach of this Agreement (including this Section 5.3) by the Company. (b) The Company shall request that all confidential or proprietary information previously furnished to any Person in connection with discussions and negotiations conducted with respect to any Company Competing Proposal in the one year period prior to the date of this Agreement be promptly returned or destroyed. (c) Notwithstanding the limitations set forth in Section 5.3(a), ~~if the Company receives~~if, prior to the Company Stockholder Approval being obtained, the Company receives a bona ~~fide, unsolicited,~~ fide written Company Competing Proposal, ~~which~~ the Company ~~Board of Directors determines~~ and its Representatives (acting in ~~good faith after consultation with the Company’s outside legal and financial advisors~~ its capacity as such) may (i) constitutes a Company Superior Proposal or (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Company Superior Proposal, then in either event (solely if the Company ~~Competing Proposal did~~ has not ~~result from a material breach~~ materially breached the provisions of Section 5.3(a)) the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries Person that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer and the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or its Representatives or with ~~whom discussions or negotiations would reasonably be expected~~ respect to ~~lead to a~~ such Company Competing Proposal~~. The Company shall keep Parent reasonably informed of~~ ) (i) contact the ~~status and material terms (including any amendments or proposed amendments to such material terms) of any~~ Person that made such Company Competing Proposal ~~or potential Company Competing Proposal~~ to clarify and keep Parent informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section 5.3 or Section 5.5 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may make a Company Change of Recommendation (i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (i) and (ii), the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel that, in light of such Company Superior Proposal or intervening event, the failure to take such action would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with five (5) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such five (5) business day period (or subsequent three (3) business day period), the Company shall consider and negotiate in good faith any proposal by Parent to amend understand the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would be inconsistent with the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.thereof and

Appears in 1 contract

Samples: Merger Agreement (Kla Tencor Corp)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the First Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, and except as otherwise specifically provided for in this Agreement, the Company agrees that it shall not (and shall not permit any Company Subsidiary to), and that it shall cause its directors, officers and employees not to, and that it shall ~~direct and~~ use its reasonable best efforts to cause its other Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its stockholders) which constitutes or would be reasonably expected to lead to a Company Competing Proposal, (ii) participate in any negotiations regarding, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary in connection with a Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal, (iv) except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify or release any Person (other than Parent, US Holdco, the Merger ~~Sub~~ Subs and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or recommend, or propose publicly to approve or recommend, any Company Competing Proposal, (vi) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (vii) within the earlier of (x) five (5) business days of a tender or exchange offer or take-over bid relating to securities of the Company having been commenced and (y) two (2) business days prior to the Company Special Meeting, fail to (1) publicly recommend against such tender or exchange offer or take-over bid, or (2) publicly reaffirm the Company Board Recommendation (if previously made by such time), (viii) after a tender or exchange offer relating to securities of the Company having been commenced, fail to send to the stockholders of the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject such tender or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly the Company Board Recommendation within the earlier of (x) five (5) business days after such public disclosure or public announcement and (y) two (2) business days prior to the Company Special Meeting, (x) enter into any letter of intent or similar document relating to, or any agreement or commitment providing for, any Company Competing ~~Proposal (other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b) or (y) in accordance with Section 8.1(i))~~Proposal, or (xiviii) resolve or agree to do any of the foregoing (any act described in clauses (v) ~~through~~ and (ixvi) above, a “Company Change of Recommendation”). The Company shall immediately cease, and cause its directors, officers and employees to cease, and shall ~~direct and~~ use its reasonable best efforts to cause its other Representatives to immediately cease, any and all existing discussions or negotiations with any parties (or provision of any nonpublic information to any parties) conducted heretofore with respect to any Company Competing Proposal or potential Company Competing Proposal. The Company shall promptly inform its Representatives of the Company’s obligations under this Section 5.3. For purposes of this Section 5.3, the term “Person” means any Person or “group,” as ~~used~~ defined in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries. Notwithstanding anything to the contrary contained in this Agreement, the Company and the Company Subsidiaries and the Company’s Representatives may in any event (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any Person solely to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to a Company Superior Proposal and (B) inform a Person that has made or, to the knowledge of the Company, is considering making a Company Competing Proposal of the provisions of this Section 5.3. (b) Notwithstanding the limitations set forth in Section 5.3(a), if the Company receives, prior to the Company Stockholder Approval being obtained, a bona fide, unsolicited, written Company Competing Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors (i) constitutes a Company Superior Proposal or (ii) would reasonably be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Company Superior Proposal, then in either event (if the Company has not materially breached the provisions of this Section 5.3 (1) with respect to such Company Competing Proposal ~~did not result from~~ or (2) in a ~~material breach of Section 5.3(a)~~manner that otherwise related to such Company Competing Proposal) the Company may take the following actions: (x) furnish nonpublic information to the Person making such Company Competing Proposal, if, and only if, prior to so furnishing such information, the Company receives from such Person an executed Acceptable Confidentiality Agreement and (y) engage in discussions or negotiations with such Person with respect to the Company Competing Proposal. (c) The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after receipt of any Company Competing Proposal, any initial proposals or inquiries that would reasonably be expected to lead to a Company Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Company Competing Proposal, inquiry or request or with whom the Company is engaging in discussions or negotiations, and the material terms and conditions of any such proposal or offer ~~and~~ or the nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt thereof, provide to Parent copies of any written documentation ~~relating~~ material to understanding a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposal. The Company shall keep Parent reasonably informed of the status and material terms (including any amendments or proposed amendments to such material terms) of any such Company Competing Proposal or potential Company Competing Proposal and keep Parent reasonably informed as to the nature of any information requested of the Company with respect thereto. The Company shall promptly (but in any event within twenty-four (24) hours) provide to Parent any material nonpublic information concerning the Company provided to any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from the restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply. (d) Notwithstanding anything in this Section 5.3 or Section 5.5 to the contrary, at any time prior to the receipt of the Company Stockholder Approval, the Company Board of Directors may make a Company Change of Recommendation (i) in response to a Company Intervening Event, or (ii) following receipt of a bona fide, unsolicited, written Company Competing ~~Proposal that is not withdrawn~~Proposal, which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors is a Company Superior Proposal, or in each case with respect to clauses (i) and (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (x) in the ~~case of clause (i)~~Company did not solicit, encourage or facilitate such Company Competing Proposal ~~was received after the date hereof and did not~~ as a result ~~from~~ of a material breach of the provisions of this Section 5.3 and (y) ~~in the case of clauses (i) and (ii),~~ the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel ~~that, in light of such Company Superior Proposal or intervening event,~~ that the failure to take such action would ~~be inconsistent with~~ constitute a breach of the duties of the members of the Company Board of Directors under applicable Law and the Company complies with Section 5.3(e). (e) Prior to the Company taking any action permitted (i) under Section 5.3(d)(i), the Company shall provide Parent with ~~five~~ four (54) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to the applicable Company Intervening Event), and during such four (4) business day period, the Company shall consider in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with four (4) business days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Company Competing Proposal shall require a new notice and an additional three (3) business day period) advising Parent that the Company Board of Directors intends to take such action and specifying the material terms and conditions of the Company Competing Proposal, and during such ~~five~~ four (54) business day period (or subsequent three (3) business day period), the Company shall consider ~~and negotiate~~ in good faith any proposal by Parent to amend the terms and conditions of this Agreement such that such Company Competing Proposal would no longer constitute a Company Superior Proposal, or (ii) under Section 5.3(d)(ii), the Company shall provide Parent with five (5) business days’ prior written notice advising Parent it intends to effect a Company Change of Recommendation and specifying, in reasonable detail, the reasons therefor (including the material facts and circumstances related to such determination by the Company Board), and during such five (5) business day period, the Company shall consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect a Company Change of Recommendation. (f) Nothing contained in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company’s stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel that the failure to do so would ~~be inconsistent with~~ constitute a breach of the duties of the members of the Company Board of Directors under applicable Law; provided that this Section 5.3(f) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section 5.3(d) or Section 5.3(e). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the ~~approval and~~ adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 1 contract

Samples: Merger Agreement (Forest Laboratories Inc)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, and except as otherwise specifically provided for in this Agreement, the Company ~~agrees that it~~ shall not (and shall ~~not permit any~~ cause the Company ~~Subsidiary to),~~ Subsidiaries and ~~that it shall cause~~ its ~~directors,~~ and their directors and officers ~~and employees~~ not to, and ~~that it~~ the Company shall ~~direct~~ instruct its and ~~use its reasonable best efforts~~ their Representatives to ~~cause its other Representatives~~ not ~~to, directly or indirectly~~to on behalf of the Company: (i) ~~solicit,~~ solicit or initiate or knowingly facilitate or encourage ~~or knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of~~ any inquiry, proposal or offer ~~(including any inquiry, proposal or offer to its stockholders) which~~ that constitutes or would be reasonably expected to lead to a Competing Proposal or engage in any discussions or negotiations with respect thereto (other than, solely in response to an inquiry not solicited in breach of this Section 5.2, solely informing the Person making such inquiry of the existence of the provisions contained in this Section 5.2; provided, however, that the Company and its Representatives may communicate in writing with a Person making a Competing Proposal (and its Representatives) solely to clarify (and not negotiate) the material terms of such Competing Proposal for the purpose of the Company Board of Directors informing itself about the terms of such Competing Proposal, ); (ii) ~~participate in~~ provide any ~~negotiations~~ information regarding, cooperate with, or ~~furnish~~ provide access to ~~any Person any nonpublic information relating to~~ the properties, personnel, books and records of, the Company or any Company Subsidiary to any Person or “group” (as defined under Section 13(d) of the Exchange Act) in connection with or under circumstances that would reasonably be expected to lead to a ~~Company~~ Competing Proposal, except as permitted by Section 5.2(c) below; (iii) ~~engage in discussions with any Person with respect to any Company Competing Proposal~~approve endorse, ~~(iv) except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify~~ or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or publicly recommend, or propose publicly to ~~approve~~ approve, endorse or recommend, any ~~Company~~ Competing Proposal, ; (viiv) ~~withdraw, change, amend, modify~~ withdraw or ~~qualify,~~ change or ~~otherwise propose publicly to withdraw, change, amend, modify or qualify,~~ qualify in a manner adverse to Parent, the Company Board ~~Recommendation, (vii) within the earlier of (x) five (5) business days of a tender~~ Recommendation or ~~exchange offer or take-over bid relating~~ fail to ~~securities of~~ include the Company ~~having been commenced and (y) two (2) business days prior~~ Board Recommendation in the Proxy Statement when disseminated to the Company ~~Special Meeting,~~ Shareholders; (v) fail to ~~(1) publicly recommend against such tender or exchange offer or take-over bid, or (2)~~ publicly reaffirm the Company Board Recommendation within five (5) Business Days after receipt of a written request by Parent following a Competing Proposal (or modification to the financial terms thereof or modification of any other material term thereof) becoming publicly known, provided that the Company and its Representatives shall have no obligation to reaffirm the Company Board Recommendation more than once with respect to any Competing Proposal (with modification to the financial terms thereof or any other material term thereof constituting a new Competing Proposal); (vi) if ~~previously made by such time), (viii) after~~ a tender offer or exchange offer ~~relating to securities of the Company having been~~ that constitutes a Competing Proposal is commenced, fail to ~~send to the stockholders~~ publicly recommend against acceptance of ~~the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject~~ such tender offer or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly by the Company ~~Board Recommendation~~ Shareholders within ten (10) Business Days after the ~~earlier of~~ commencement thereof (~~x) five (5) business days after such public disclosure~~ or ~~public announcement and (y) two (2) business days prior~~ any modification to the ~~Company Special Meeting,~~ financial terms thereof or any other material terms thereof); (xvii) enter into any letter of ~~intent or similar document relating to~~intent, ~~or any~~ memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or ~~commitment providing for,~~ other similar Contract or understanding relating to any ~~Company~~ Competing Proposal (~~other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)~~ whether binding or nonbinding); or (~~y) in accordance with Section 8.1(i)), or (xi~~viii) resolve or agree to do any of the foregoing (any act described in clauses (iii), (iv), (v) ~~through~~ or (ixvi), this clause (viii) (to the extent related to clauses (iii), (iv), (v) or (vi)), above, a “Company Change of Recommendation”). Any violation of the restrictions contained in this Section 5.2(a) or in Section 5.2(b) by any of the Company’s Representatives shall be deemed to be a breach of this Section 5.2(a) or in Section 5.2(b), respectively, by the Company. The Company agrees that neither it, nor its affiliates, will enter into any agreement with any Third Party subsequent to the date of this Agreement which would prohibit the Company or any of its affiliates from providing any information to Parent in accordance with, or otherwise complying with, this Section 5.2. (b) The Company shall immediately ~~cease, and cause its directors, officers and employees to cease,~~ cease and shall ~~direct~~ cause the Company Subsidiaries and ~~use~~ instruct its ~~reasonable best efforts to cause its other~~ and their Representatives to ~~immediately~~ promptly cease, any and all existing ~~discussions~~ discussions, activities or negotiations with any ~~parties (or provision of any nonpublic information to any parties)~~ Person conducted heretofore with respect to any ~~Company~~ Competing Proposal (including, if applicable, the termination within 24 hours of access to any data room established in connection therewith). Promptly following the date of this Agreement, the Company will request that each Person (other than Parent and its Representatives) that has, prior to the date of this Agreement, executed a confidentiality agreement in connection with its consideration of a Competing Proposal which has not terminated or ~~potential Company Competing Proposal. The Company shall~~ expired pursuant to its terms to promptly ~~inform its Representatives~~ return or destroy (and certify such destruction in writing) all non-public information furnished to such Person by or on behalf of the ~~Company’s obligations under this Section 5.3. For purposes~~ Company or any of the Company Subsidiaries prior to the date of this ~~Section 5.3,~~ Agreement in accordance with the ~~term “Person” means any Person or “group,” as used in Section 13(d)~~ terms of ~~the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries~~such confidentiality agreement. (bc) Notwithstanding the limitations set forth in Section ~~5.3(a~~5.2(a), if if, after the ~~Company receives,~~ date of this Agreement and prior to the Company ~~Stockholder~~ Shareholder Approval being obtained, a the Company receives an unsolicited bona ~~fide, unsolicited,~~ fide written ~~Company~~ Competing ~~Proposal, which~~ Proposal and the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial ~~advisors (i)~~ advisor that such Competing Proposal constitutes a ~~Company~~ Superior Proposal or ~~(ii)~~ would reasonably be ~~expected~~ likely to ~~result, after the taking of any of the actions referred~~ lead to ~~in either of clause (x) or (y) below, in~~ a ~~Company~~ Superior Proposal, then in either event ~~(if~~ the Company ~~Competing Proposal did not result from a material breach of Section 5.3(a)) the Company may take the following actions~~and its Representatives may: (xi) furnish information (including nonpublic ~~information~~ information) to the Person making such ~~Company~~ Competing Proposal, its Representatives and its potential sources of financing, if, and only if, prior to so furnishing such information, the Company receives (or has previously received) from such Person an executed Acceptable Confidentiality Agreement covering such Persons; and (yii) engage in discussions or negotiations with such ~~Person~~ Person, its Representatives and its potential sources of financing with respect to such Competing Proposal and any changes thereto, including by making counterproposals thereto. The Company will promptly provide to Parent any material nonpublic information concerning the Company or the Company Subsidiaries provided to any other Person in connection with any Competing ~~Proposal~~Proposal that was not previously provided to Parent. (cd) The Company shall notify Parent promptly (but in no event later than ~~twenty-four~~ two (242) ~~hours~~Business Days) ~~after~~ after, to the knowledge of the Company, the receipt of any ~~Company~~ Competing ~~Proposal~~Proposal or any inquiry, ~~any initial proposals~~ indication, request or ~~inquiries~~ offer that would be reasonably be expected to lead to a ~~Company~~ Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate together with the identity of the Person making any such Competing Proposal inquiry, indication, request or offer, and provide Parent with a copy of the ~~Company~~ Competing Proposal, ~~inquiry or~~ inquiry, indication, request or ~~with whom~~ offer (or if the ~~Company~~ Competing Proposal, inquiry, indication, request or offer is ~~engaging~~ not in ~~discussions or negotiations~~writing, ~~and~~ a written description of the material terms thereof), together with any material documents and ~~conditions of any such proposal or offer and~~ proposed material terms relating to the ~~nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt~~ financing thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposalif any. The Company shall (i) keep Parent reasonably informed on a prompt basis of the status ~~and material terms (including~~ of discussions relating to any ~~amendments or proposed amendments to such material terms) of any such Company~~ Competing Proposal inquiry, indication, request or ~~potential Company Competing Proposal~~ offer, and ~~keep Parent informed as to the nature of any information requested of the Company with respect thereto. The Company shall~~ (ii) promptly ~~(but in any event within twenty-four (24) hours)~~ provide to Parent ~~any material nonpublic information concerning~~ written notice containing copies of correspondence, documents and other written materials sent by or provided to the Company, the Company ~~provided~~ Subsidiaries or any of their Representatives that describes any financial or other material terms or conditions of such Competing Proposal, inquiry, indication, request or offer (together with written summaries of any additional or modified material terms or conditions conveyed orally to ~~any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from~~ or by the ~~restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply~~Company). (de) Notwithstanding anything in this Section ~~5.3~~ 5.2 or Section ~~5.5~~ 5.3 to the contrary, at any time prior to the receipt of the Company ~~Stockholder~~ Shareholder Approval, the Company Board of Directors may make a Company Change of Recommendation ~~(i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines~~ in ~~good faith after consultation with the Company’s outside legal and financial advisors is~~ response to a Company ~~Superior Proposal~~Intervening Event if, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (~~x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (~~i) ~~and (ii),~~ the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel ~~that, in light of such Company Superior Proposal or intervening event,~~ and financial advisor that the failure to ~~take such action~~ make a Company Change of Recommendation would be reasonably likely to be inconsistent with the fiduciary duties of the members of the Company Board of Directors ~~under applicable Law and the Company complies with Section 5.3(e). (e) Prior~~ to the Company ~~taking any action permitted~~ Shareholders under Israeli Law (~~i) under Section 5.3(d)(i)~~provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board of Directors may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); provided, further, that the actions of the Company Board of Directors solely in making such determination and such determination shall ~~provide~~ not constitute a Company Change of Recommendation or a violation of this Section 5.2, (ii) the Company has provided Parent with ~~five (5) business days’ prior~~ a written notice (~~it being understood~~ a “Company Intervening Event Notice”) of such determination, stating that such notice constitutes a Company Intervening Event Notice, providing a description of the material facts and ~~agreed that any material amendment~~ circumstances giving rise to the ~~amount or form of consideration payable in connection with the applicable~~ Company ~~Competing Proposal shall require a new notice~~ Intervening Event, and ~~an additional three (3) business day period) advising Parent~~ that the Company Board of Directors intends to ~~take~~ effect a Company Change of Recommendation (provided, however, that the sole action of giving such ~~action~~ Company Intervening Event Notice and ~~specifying the material terms and conditions~~ of the Company ~~Competing Proposal,~~ Board of Directors in authorizing and disclosing (to the extent legally required) such Company Intervening Event Notice shall not constitute a Company Change of Recommendation or a violation of this Section 5.2) and (iii) during ~~such five (5) business day~~ the period ~~(or subsequent three (3) business day period),~~ commencing on the date of Parent’s receipt of the Company ~~shall consider~~ Intervening Event Notice and ~~negotiate~~ ending at 5:00 p.m. California time on date that is the fourth (4th) Business Day thereafter, has made its Representatives reasonably available for the purpose of engaging in discussions and negotiations with Parent and its Representatives (to the extent Parent desires to negotiate) regarding a possible amendment to this Agreement and has considered in good faith any ~~proposal~~ proposals made by ~~Parent~~ Parent, and after taking account of Parent’s proposals, if any, the Company Board of Directors again makes the determination set forth in Section 5.2(e)(i). (f) Notwithstanding anything in this Section 5.2 or Section 5.3 to ~~amend~~ the ~~terms and conditions~~ contrary, at any time prior to the receipt of the Company Shareholder Approval, the Company Board of Directors may in response to its receipt after the date of this Agreement of a bona fide written Competing Proposal, make a Company Change of Recommendation or terminate this Agreement to enter into a definitive written agreement providing for such Competing Proposal pursuant to Section 8.1(h) if, and only if, (i) the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel and financial advisor that (x) such Competing Proposal constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may have been offered by Parent prior to the determination by the Company Board of Directors, and (y) the failure to make such Company ~~Competing Proposal~~ Change of Recommendation or to terminate this Agreement would ~~no longer~~ be reasonably likely to be inconsistent with the fiduciary duties of the members of the Company Board of Directors to the Company Shareholders under Israeli Law (provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board of Directors may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); provided, further, that the actions of the Company Board of Directors solely in making such determination and such determination shall not constitute a Company ~~Superior Proposal~~Change of Recommendation, a violation of this Section 5.2 or a termination of this Agreement, (ii) ~~under Section 5.3(d)(ii),~~ the Company ~~shall provide~~ has provided Parent with ~~five (5) business days’ prior~~ a written notice ~~advising Parent it~~ (a “Company Notice”) of such determination, stating that such notice constitutes a Company Notice, stating whether the Company Board of Directors intends to effect a Company Change of Recommendation or the Company intends to terminate this Agreement, and ~~specifying,~~ describing in reasonable ~~detail,~~ detail the reasons ~~therefor~~ for such Company Change of Recommendation or termination (~~including~~ provided, however, that the ~~material facts~~ sole action of giving such Company Notice and ~~circumstances related to such determination by~~ of the Company ~~Board),~~ Board of Directors in authorizing and ~~during~~ disclosing (to the extent legally required) such ~~five (5) business day period, the~~ Company Notice shall ~~consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect~~ not constitute a Company Change of Recommendation, a violation of this Section 5.2 or a termination of this Agreement), (iii) the Company has provided Parent with the material agreements and documents relating to such Competing Proposal (including the financing thereof), and (iv) during the period commencing on the date of Parent’s receipt of the Company Notice and ending at 5:00 p.m. California time on date that is the fourth (4th) Business Day thereafter, the Company has made its Representatives reasonably available for the purpose of engaging in discussions and negotiations with Parent and its Representatives (to the extent Parent desired to negotiate) regarding a possible amendment to this Agreement and has considered in good faith any written proposals made by Parent that if accepted by the Company would be binding upon Parent, and after taking account of Parent’s proposals, if any, the Company Board of Directors again makes the determination set forth in Section 5.2(f)(i). Following receipt by Parent of a Company Notice, if the financial or other material terms of such Competing Proposal are amended prior to the Company Board of Directors making a Company Change of Recommendation or terminating this Agreement in accordance with the foregoing sentence, the Company will deliver to Parent a new Company Notice prior to the Company Board of Directors making a Company Change of Recommendation or terminating this Agreement in accordance with the foregoing sentence, provided that the period of negotiation provided in Section 5.2(f)(iv) shall instead end at 5:00 p.m. local time in California on the second (2nd) Business Day immediately following Parent’s receipt of such Company Notice, but no such new Company Notice shall shorten the original five (5) Business Day notice period. (fg) Nothing contained in this ~~Agreement~~ Section 5.2 shall prohibit the Company or the Company Board of Directors from (i) disclosing to the ~~Company’s stockholders~~ Company Shareholders a position contemplated by Rules 14d-9 ~~and~~ or 14e-2(a) promulgated under the Exchange Act (or any communication required under Israeli Law with substantially similar content) or a position contemplated by Section 329 of the ICL, or (ii) making any disclosure to ~~its stockholders~~ the Company Shareholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel and financial advisor that the failure to do so would be reasonably likely to be inconsistent with the fiduciary duties of the members of the Company Board of Directors to the Company Shareholders under ~~applicable~~ Israeli Law (provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board of Directors may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); ~~provided~~ provided, further, that any such disclosure referred to in clauses (i) or (ii) that relates to a Competing Proposal shall be deemed to be a Company Change of Recommendation unless (x) the Company Board of Directors expressly reaffirms the Company Board Recommendation in such disclosure or (y) such disclosure is a “stop, look and listen” communication to the Company Shareholders pursuant to Rule 14d-9(b) promulgated under the Exchange Act, or any communication under Israeli Law with substantially similar content; provided, further, that this Section ~~5.3(f~~5.2(g) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section ~~5.3(d~~5.2(e) or Section ~~5.3(e~~5.2(f). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 1 contract

Samples: Merger Agreement (Mellanox Technologies, Ltd.)

Solicitation by the Company. (a) From and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section ~~8.1~~‎8.1, and except as otherwise specifically provided for in this Agreement, the Company ~~agrees that it~~ shall not (and shall ~~not permit any~~ cause the Company ~~Subsidiary to),~~ Subsidiaries and ~~that it shall cause~~ its ~~directors,~~ and their directors and officers ~~and employees~~ not to, and ~~that it~~ the Company shall ~~direct~~ instruct its and ~~use its reasonable best efforts~~ their Representatives to ~~cause its other Representatives~~ not ~~to, directly or indirectly~~to on behalf of the Company: (i) ~~solicit,~~ solicit or initiate or knowingly facilitate or encourage ~~or knowingly facilitate (including by way of furnishing information), or engage in discussions or negotiations regarding, any inquiry, proposal or offer, or the making, submission or announcement of~~ any inquiry, proposal or offer ~~(including any inquiry, proposal or offer to its stockholders) which~~ that constitutes or would be reasonably expected to lead to a Competing Proposal or engage in any discussions or negotiations with respect thereto (other than, solely in response to an inquiry not solicited in breach of this Section 5.2, solely informing the Person making such inquiry of the existence of the provisions contained in this Section ‎5.2; provided, however, that the Company and its Representatives may communicate in writing with a Person making a Competing Proposal (and its Representatives) solely to clarify (and not negotiate) the material terms of such Competing Proposal for the purpose of the Company Board of Directors informing itself about the terms of such Competing Proposal, ); (ii) ~~participate in~~ provide any ~~negotiations~~ information regarding, cooperate with, or ~~furnish~~ provide access to ~~any Person any nonpublic information relating to~~ the properties, personnel, books and records of, the Company or any Company Subsidiary to any Person or “group” (as defined under Section 13(d) of the Exchange Act) in connection with or under circumstances that would reasonably be expected to lead to a ~~Company~~ Competing Proposal, except as permitted by Section ‎5.2(c) below; (iii) ~~engage in discussions with any Person with respect to any Company Competing Proposal~~approve endorse, ~~(iv) except as required by the duties of the members of the Company Board of Directors under applicable Law, waive, terminate, modify~~ or release any Person (other than Parent, Merger Sub and their respective affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, (v) approve or publicly recommend, or propose publicly to ~~approve~~ approve, endorse or recommend, any ~~Company~~ Competing Proposal, ; (viiv) ~~withdraw, change, amend, modify~~ withdraw or ~~qualify,~~ change or ~~otherwise propose publicly to withdraw, change, amend, modify or qualify,~~ qualify in a manner adverse to Parent, the Company Board ~~Recommendation, (vii) within the earlier of (x) five (5) business days of a tender~~ Recommendation or ~~exchange offer or take-over bid relating~~ fail to ~~securities of~~ include the Company ~~having been commenced and (y) two (2) business days prior~~ Board Recommendation in the Proxy Statement when disseminated to the Company ~~Special Meeting,~~ Shareholders; (v) fail to ~~(1) publicly recommend against such tender or exchange offer or take-over bid, or (2)~~ publicly reaffirm the Company Board Recommendation within five (5) Business Days after receipt of a written request by Parent following a Competing Proposal (or modification to the financial terms thereof or modification of any other material term thereof) becoming publicly known, provided that the Company and its Representatives shall have no obligation to reaffirm the Company Board Recommendation more than once with respect to any Competing Proposal (with modification to the financial terms thereof or any other material term thereof constituting a new Competing Proposal); (vi) if ~~previously made by such time), (viii) after~~ a tender offer or exchange offer ~~relating to securities of the Company having been~~ that constitutes a Competing Proposal is commenced, fail to ~~send to the stockholders~~ publicly recommend against acceptance of ~~the Company a Schedule 14D-9 disclosing the Company Board of Directors’ recommendation that the stockholders of the Company reject~~ such tender offer or exchange offer in accordance with the timing requirements under the United States federal securities Laws, (ix) following the public disclosure or public announcement of a Company Competing Proposal, fail to reaffirm publicly by the Company ~~Board Recommendation~~ Shareholders within ten (10) Business Days after the ~~earlier of~~ commencement thereof (~~x) five (5) business days after such public disclosure~~ or ~~public announcement and (y) two (2) business days prior~~ any modification to the ~~Company Special Meeting,~~ financial terms thereof or any other material terms thereof); (xvii) enter into any letter of ~~intent or similar document relating to~~intent, ~~or any~~ memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or ~~commitment providing for,~~ other similar Contract or understanding relating to any ~~Company~~ Competing Proposal (~~other than (x) an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)~~ whether binding or nonbinding); or (~~y) in accordance with Section 8.1(i)), or (xi~~viii) resolve or agree to do any of the foregoing (any act described in clauses (iii), (iv), (v) ~~through~~ or (ixvi), this clause (viii) (to the extent related to clauses (iii), (iv), (v) or (vi)), above, a “Company Change of Recommendation”). Any violation of the restrictions contained in this Section ‎5.2(a) or in ‎Section 5.2(b) by any of the Company’s Representatives shall be deemed to be a breach of this Section ‎5.2(a) or in Section 5.2(b), respectively, by the Company. The Company agrees that neither it, nor its affiliates, will enter into any agreement with any Third Party subsequent to the date of this Agreement which would prohibit the Company or any of its affiliates from providing any information to Parent in accordance with, or otherwise complying with, this ‎Section 5.2. (b) The Company shall immediately ~~cease, and cause its directors, officers and employees to cease,~~ cease and shall ~~direct~~ cause the Company Subsidiaries and ~~use~~ instruct its ~~reasonable best efforts to cause its other~~ and their Representatives to ~~immediately~~ promptly cease, any and all existing ~~discussions~~ discussions, activities or negotiations with any ~~parties (or provision of any nonpublic information to any parties)~~ Person conducted heretofore with respect to any ~~Company~~ Competing Proposal (including, if applicable, the termination within 24 hours of access to any data room established in connection therewith). Promptly following the date of this Agreement, the Company will request that each Person (other than Parent and its Representatives) that has, prior to the date of this Agreement, executed a confidentiality agreement in connection with its consideration of a Competing Proposal which has not terminated or ~~potential Company Competing Proposal. The Company shall~~ expired pursuant to its terms to promptly ~~inform its Representatives~~ return or destroy (and certify such destruction in writing) all non-public information furnished to such Person by or on behalf of the ~~Company’s obligations under this Section 5.3. For purposes~~ Company or any of the Company Subsidiaries prior to the date of this ~~Section 5.3,~~ Agreement in accordance with the ~~term “Person” means any Person or “group,” as used in Section 13(d)~~ terms of ~~the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiaries~~such confidentiality agreement. (bc) Notwithstanding the limitations set forth in Section ~~5.3(a~~‎5.2(a), if if, after the ~~Company receives,~~ date of this Agreement and prior to the Company ~~Stockholder~~ Shareholder Approval being obtained, a the Company receives an unsolicited bona ~~fide, unsolicited,~~ fide written ~~Company~~ Competing ~~Proposal, which~~ Proposal and the Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial ~~advisors (i)~~ advisor that such Competing Proposal constitutes a ~~Company~~ Superior Proposal or ~~(ii)~~ would reasonably be ~~expected~~ likely to ~~result, after the taking of any of the actions referred~~ lead to ~~in either of clause (x) or (y) below, in~~ a ~~Company~~ Superior Proposal, then in either event ~~(if~~ the Company ~~Competing Proposal did not result from a material breach of Section 5.3(a)) the Company may take the following actions~~and its Representatives may: (xi) furnish information (including nonpublic ~~information~~ information) to the Person making such ~~Company~~ Competing Proposal, its Representatives and its potential sources of financing, if, and only if, prior to so furnishing such information, the Company receives (or has previously received) from such Person an executed Acceptable Confidentiality Agreement covering such Persons; and (yii) engage in discussions or negotiations with such ~~Person~~ Person, its Representatives and its potential sources of financing with respect to such Competing Proposal and any changes thereto, including by making counterproposals thereto. The Company will promptly provide to Parent any material nonpublic information concerning the Company or the Company Subsidiaries provided to any other Person in connection with any Competing ~~Proposal~~Proposal that was not previously provided to Parent. (cd) The Company shall notify Parent promptly (but in no event later than ~~twenty-four~~ two (242) ~~hours~~Business Days) ~~after~~ after, to the knowledge of the Company, the receipt of any ~~Company~~ Competing ~~Proposal~~Proposal or any inquiry, ~~any initial proposals~~ indication, request or ~~inquiries~~ offer that would be reasonably be expected to lead to a ~~Company~~ Competing Proposal, or any initial inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any Person who has made or would reasonably be expected to make any Company Competing Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate together with the identity of the Person making any such Competing Proposal inquiry, indication, request or offer, and provide Parent with a copy of the ~~Company~~ Competing Proposal, ~~inquiry or~~ inquiry, indication, request or ~~with whom~~ offer (or if the ~~Company~~ Competing Proposal, inquiry, indication, request or offer is ~~engaging~~ not in ~~discussions or negotiations~~writing, ~~and~~ a written description of the material terms thereof), together with any material documents and ~~conditions of any such proposal or offer and~~ proposed material terms relating to the ~~nature of the information requested pursuant to such inquiry or request. In addition, the Company shall promptly (but in any event within twenty-four (24) hours) after the receipt~~ financing thereof, provide to Parent copies of any written documentation relating to a Company Competing Proposal or potential Company Competing Proposal which is received by the Company from any Person (or from any representatives, advisors or agents of such Person) making such Company Competing Proposal or with whom discussions or negotiations would reasonably be expected to lead to a Company Competing Proposalif any. The Company shall (i) keep Parent reasonably informed on a prompt basis of the status ~~and material terms (including~~ of discussions relating to any ~~amendments or proposed amendments to such material terms) of any such Company~~ Competing Proposal inquiry, indication, request or ~~potential Company Competing Proposal~~ offer, and ~~keep Parent informed as to the nature of any information requested of the Company with respect thereto. The Company shall~~ (ii) promptly ~~(but in any event within twenty-four (24) hours)~~ provide to Parent ~~any material nonpublic information concerning~~ written notice containing copies of correspondence, documents and other written materials sent by or provided to the Company, the Company ~~provided~~ Subsidiaries or any of their Representatives that describes any financial or other material terms or conditions of such Competing Proposal, inquiry, indication, request or offer (together with written summaries of any additional or modified material terms or conditions conveyed orally to ~~any other Person in connection with any Company Competing Proposal that was not previously provided to Parent. The Company shall not take any action to exempt any Person from~~ or by the ~~restrictions on “business combinations” contained in any applicable Takeover Statute or otherwise cause such restrictions not to apply~~Company). (de) Notwithstanding anything in this Section ~~5.3~~ 5.2 or Section ~~5.5~~ ‎5.3 to the contrary, at any time prior to the receipt of the Company ~~Stockholder~~ Shareholder Approval, the Company Board of Directors may make a Company Change of Recommendation ~~(i) following receipt of a bona fide, unsolicited, written Company Competing Proposal that is not withdrawn, which the Company Board of Directors determines~~ in ~~good faith after consultation with the Company’s outside legal and financial advisors is~~ response to a Company ~~Superior Proposal~~Intervening Event if, or (ii) as a result of a material development or change in circumstances that occurs or arises after the date of this Agreement that was not known, or reasonably foreseeable by the Company Board of Directors as of the date of this Agreement (provided, however, that (A) in no event shall the receipt, existence or terms of a Company Competing Proposal or any matter relating thereto or consequence thereof constitute such an intervening event and (B) in no event shall any event or events that has or have an adverse effect on the business, properties, financial condition or results of operations of Parent and the Parent Subsidiaries, taken as a whole, constitute such an intervening event unless such event or events has had or would reasonably be expected to have a Parent Material Adverse Effect), if and only if, (~~x) in the case of clause (i), such Company Competing Proposal was received after the date hereof and did not result from a breach of the provisions of this Section 5.3 and (y) in the case of clauses (~~i) ~~and (ii),~~ the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel ~~that, in light of such Company Superior Proposal or intervening event,~~ and financial advisor that the failure to ~~take such action~~ make a Company Change of Recommendation would be reasonably likely to be inconsistent with the fiduciary duties of the members of the Company Board of Directors ~~under applicable Law and the Company complies with Section 5.3(e). (e) Prior~~ to the Company ~~taking any action permitted~~ Shareholders under Israeli Law (~~i) under Section 5.3(d)(i)~~provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board of Directors may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); provided, further, that the actions of the Company Board of Directors solely in making such determination and such determination shall ~~provide~~ not constitute a Company Change of Recommendation or a violation of this ‎Section 5.2, (ii) the Company has provided Parent with ~~five (5) business days’ prior~~ a written notice (~~it being understood~~ a “Company Intervening Event Notice”) of such determination, stating that such notice constitutes a Company Intervening Event Notice, providing a description of the material facts and ~~agreed that any material amendment~~ circumstances giving rise to the ~~amount or form of consideration payable in connection with the applicable~~ Company ~~Competing Proposal shall require a new notice~~ Intervening Event, and ~~an additional three (3) business day period) advising Parent~~ that the Company Board of Directors intends to ~~take~~ effect a Company Change of Recommendation (provided, however, that the sole action of giving such ~~action~~ Company Intervening Event Notice and ~~specifying the material terms and conditions~~ of the Company ~~Competing Proposal,~~ Board of Directors in authorizing and disclosing (to the extent legally required) such Company Intervening Event Notice shall not constitute a Company Change of Recommendation or a violation of this Section ‎5.2) and (iii) during ~~such five (5) business day~~ the period ~~(or subsequent three (3) business day period),~~ commencing on the date of Parent’s receipt of the Company ~~shall consider~~ Intervening Event Notice and ~~negotiate~~ ending at 5:00 p.m. California time on date that is the fourth (4th) Business Day thereafter, has made its Representatives reasonably available for the purpose of engaging in discussions and negotiations with Parent and its Representatives (to the extent Parent desires to negotiate) regarding a possible amendment to this Agreement and has considered in good faith any ~~proposal~~ proposals made by ~~Parent~~ Parent, and after taking account of Parent’s proposals, if any, the Company Board of Directors again makes the determination set forth in Section ‎5.2(e)(i). (f) Notwithstanding anything in this ‎Section 5.2 or ‎Section 5.3 to ~~amend~~ the ~~terms and conditions~~ contrary, at any time prior to the receipt of the Company Shareholder Approval, the Company Board of Directors may in response to its receipt after the date of this Agreement of a bona fide written Competing Proposal, make a Company Change of Recommendation or terminate this Agreement to enter into a definitive written agreement providing for such Competing Proposal pursuant to ‎Section 8.1(h) if, and only if, (i) the Company Board of Directors has determined in good faith after consultation with the Company’s outside legal counsel and financial advisor that (x) such Competing Proposal constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may have been offered by Parent prior to the determination by the Company Board of Directors, and (y) the failure to make such Company ~~Competing Proposal~~ Change of Recommendation or to terminate this Agreement would ~~no longer~~ be reasonably likely to be inconsistent with the fiduciary duties of the members of the Company Board of Directors to the Company Shareholders under Israeli Law (provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board of Directors may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); provided, further, that the actions of the Company Board of Directors solely in making such determination and such determination shall not constitute a Company ~~Superior Proposal~~Change of Recommendation, a violation of this Section 5.2 or a termination of this Agreement, (ii) ~~under Section 5.3(d)(ii),~~ the Company ~~shall provide~~ has provided Parent with ~~five (5) business days’ prior~~ a written notice ~~advising Parent it~~ (a “Company Notice”) of such determination, stating that such notice constitutes a Company Notice, stating whether the Company Board of Directors intends to effect a Company Change of Recommendation or the Company intends to terminate this Agreement, and ~~specifying,~~ describing in reasonable ~~detail,~~ detail the reasons ~~therefor~~ for such Company Change of Recommendation or termination (~~including~~ provided, however, that the ~~material facts~~ sole action of giving such Company Notice and ~~circumstances related to such determination by~~ of the Company ~~Board),~~ Board of Directors in authorizing and ~~during~~ disclosing (to the extent legally required) such ~~five (5) business day period, the~~ Company Notice shall ~~consider and negotiate in good faith any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to effect~~ not constitute a Company Change of Recommendation, a violation of this ‎Section 5.2 or a termination of this Agreement), (iii) the Company has provided Parent with the material agreements and documents relating to such Competing Proposal (including the financing thereof), and (iv) during the period commencing on the date of Parent’s receipt of the Company Notice and ending at 5:00 p.m. California time on date that is the fourth (4th) Business Day thereafter, the Company has made its Representatives reasonably available for the purpose of engaging in discussions and negotiations with Parent and its Representatives (to the extent Parent desired to negotiate) regarding a possible amendment to this Agreement and has considered in good faith any written proposals made by Parent that if accepted by the Company would be binding upon Parent, and after taking account of Parent’s proposals, if any, the Company Board of Directors again makes the determination set forth in ‎Section 5.2(f)(i). Following receipt by Parent of a Company Notice, if the financial or other material terms of such Competing Proposal are amended prior to the Company Board of Directors making a Company Change of Recommendation or terminating this Agreement in accordance with the foregoing sentence, the Company will deliver to Parent a new Company Notice prior to the Company Board of Directors making a Company Change of Recommendation or terminating this Agreement in accordance with the foregoing sentence, provided that the period of negotiation provided in ‎Section 5.2(f)(iv) shall instead end at 5:00 p.m. local time in California on the second (2nd) Business Day immediately following Parent’s receipt of such Company Notice, but no such new Company Notice shall shorten the original five (5) Business Day notice period. (fg) Nothing contained in this ~~Agreement~~ Section 5.2 shall prohibit the Company or the Company Board of Directors from (i) disclosing to the ~~Company’s stockholders~~ Company Shareholders a position contemplated by Rules 14d-9 ~~and~~ or 14e-2(a) promulgated under the Exchange Act (or any communication required under Israeli Law with substantially similar content) or a position contemplated by Section 329 of the ICL, or (ii) making any disclosure to ~~its stockholders~~ the Company Shareholders if the Company Board of Directors has reasonably determined in good faith after consultation with the Company’s outside legal counsel and financial advisor that the failure to do so would be reasonably likely to be inconsistent with the fiduciary duties of the members of the Company Board of Directors to the Company Shareholders under ~~applicable~~ Israeli Law (provided, however, that in order to determine the appropriate standards that would apply to such fiduciary duties, the Company Board of Directors may also consider and act on the basis of the fiduciary duties owed by a board of directors to the shareholders of a company under Delaware Law); ~~provided~~ provided, further, that any such disclosure referred to in clauses (i) or (ii) that relates to a Competing Proposal shall be deemed to be a Company Change of Recommendation unless (x) the Company Board of Directors expressly reaffirms the Company Board Recommendation in such disclosure or (y) such disclosure is a “stop, look and listen” communication to the Company Shareholders pursuant to Rule 14d-9(b) promulgated under the Exchange Act, or any communication under Israeli Law with substantially similar content; provided, further, that this Section ~~5.3(f~~‎5.2(g) shall not permit the Company Board of Directors to make a Company Change of Recommendation except to the extent permitted by Section ~~5.3(d~~‎5.2(e) or Section ~~5.3(e~~‎5.2(f). (g) No Company Change of Recommendation shall relieve the Company from its obligations to submit the approval and adoption of this Agreement to a vote of its stockholders at the Company Special Meeting. (h) References in this Section 5.3 to the “Company Board of Directors” shall mean the Company Board of Directors or, to the extent applicable, a duly authorized committee thereof.

Appears in 1 contract

Samples: Merger Agreement (Nvidia Corp)

Common use of Solicitation by the Company Clause in Contracts