Solicitation; Change in Recommendation. (a) Notwithstanding anything to the contrary set forth in this Agreement, during the period commencing with the execution of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after the date of execution of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) shall have the right, directly or indirectly, (i) to initiate, solicit and/or encourage the submission of one or more Acquisition Proposals from one or more Persons, including by furnishing to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives), (ii) to continue, enter into, participate in and/or engage in any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals. (b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its Representatives to, (i) beginning on the No-Shop Period Start Date, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, (A) not solicit or take other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal. (c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal. (d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement). (e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Company Shareholder Approval, (i) the Company Board may make a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicable, if the Company Board with respect to an Acquisition Proposal has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company shall have provided prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z). (f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement. (g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company. (h) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit Company, Company Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations under applicable Law, it being understood that neither any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreement. (i) For purposes of this Agreement:
Appears in 3 contracts
Samples: Merger Agreement (Perfumania Holdings, Inc.), Merger Agreement (Perfumania Holdings, Inc.), Merger Agreement (Parlux Fragrances Inc)
Solicitation; Change in Recommendation. (a) Notwithstanding anything any other provision of this Agreement to the contrary set forth in this Agreementcontrary, during the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on the 30th 50th day after following the date of execution of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents employees, consultants, agents, advisors, affiliates and other representatives retained in connection with the Transactions (collectively, “Representatives”) shall have the right, right to directly or indirectly, : (i) to initiate, solicit and/or and encourage the submission of one Takeover Proposals (as defined herein) (or more Acquisition Proposals from one inquiries, proposals or more Personsoffers or other efforts or attempts that may lead to a Takeover Proposal), including by furnishing way of providing access to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an (but only pursuant to) one or more Acceptable Confidentiality Agreement and Agreements (as defined herein); provided that the Company shall promptly make available provide to the Parent any material non-public information concerning the Company and/or or its Subsidiaries that is provided to any Person given such access which was not previously made available provided to the Parent or its officers, directors or Representatives), ; and (ii) to continue, enter into, participate in and/or engage in any in, and maintain discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any other proposals that could lead to an Acquisition Proposalsuch inquiries, and (iii) to proposals, discussions or negotiations. For the extent not otherwise prohibited by purposes of this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its Representatives to, “Acceptable Confidentiality Agreement” means (i) beginning on the No-Shop Period Start Date, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, (A) not solicit or take other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, confidentiality agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that between the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each any such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that Person existing as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (any confidentiality agreement entered into after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement).
(e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Company Shareholder Approval, (i) the Company Board may make a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicable, if the Company Board with respect to an Acquisition Proposal has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known that contains provisions that are no less favorable in the aggregate to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company shall have provided prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company), (X) than those contained in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit Company, Company Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations under applicable Law, it being understood that neither any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreement.
(i) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Avaya Inc)
Solicitation; Change in Recommendation. (a) Notwithstanding anything Except as permitted by this Section 5.02, the Company shall and shall cause each of its Subsidiaries and its and their officers and directors to, and shall instruct and use its reasonable best efforts to cause its other Representatives to, (i) immediately cease any solicitation, discussions or negotiations with any Persons with respect to a Takeover Proposal that existed on or prior to the contrary set forth in this Agreementdate hereof and (ii) from the date hereof until the Effective Time or, during if earlier, the period commencing with the execution termination of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after the date of execution of this Agreement (the “No-Shop Period Start Date”)in accordance with Article VII, the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) shall have the rightnot, directly or indirectly, (iA) to initiate, solicit and/or solicit, or knowingly encourage (including by way of furnishing non-public information) the submission of one any inquiries regarding, or more Acquisition Proposals from one the making of any proposal or more Personsoffer that constitutes, including by furnishing or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding (except to notify any Person of the provisions of this Section 5.02), or furnish to any other Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to in connection with, or for the purpose of, encouraging a Takeover Proposal or (C) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement providing for a Takeover Proposal. The Company and/or shall promptly request the return or destruction of all information furnished by or on its Subsidiaries or by affording behalf to any Person and/or and its Affiliates, officers, directors, agents Representatives with respect to a Takeover Proposal on or Representatives access prior to the businessdate hereof.
(b) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary, propertiesif at any time on or after the date hereof and prior to obtaining the Company Shareholder Approval, assetsthe Company or any of its Representatives receives an oral or written Takeover Proposal, bookswhich Takeover Proposal did not result from any breach of this Section 5.02, records (i) the Company and its Representatives may contact and engage in discussions with such Person or other non-public information, group of Persons making the Takeover Proposal or its or their Representatives and financing sources to clarify the terms and conditions thereof or to request that any Takeover Proposal made orally be made in writing or to notify such Person or group of Persons or its or their Representatives and financing sources of the personnel, provisions of this Section 5.02 and (ii) if the Board of Directors of the Company and/or or any committee thereof determines in good faith, after consultation with its Subsidiaries financial advisors and outside legal counsel, that any such written Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal and the failure to take the following actions is reasonably likely to be inconsistent with the Board of Directors’ fiduciary duties under applicable Law, then the Company and any of its Representatives may (each, a “Solicited Person”x) (all enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives and financing sources; provided that the Company shall promptly make available (and in any event within 24 hours) provide to the Parent any material non-public information concerning the Company and/or or any of its Subsidiaries that is provided to any Person given such access which was not previously made available provided to the Parent or its officers, directors or Representatives), Representatives and (iiy) to continue, enter into, participate in and/or engage in any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its Representatives to, (i) beginning on the No-Shop Period Start Date, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, (A) not solicit or take other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any the Person other than Parent with respect to any Acquisition Proposalor group of Persons making such Takeover Proposal and its or their Representatives and financing sources.
(c) Notwithstanding The Company shall promptly (and in any event within 24 hours after knowledge of receipt by an officer or director of the Company) notify Parent in the event that the Company or any of its Subsidiaries or any of its or their Representatives receives a Takeover Proposal and shall disclose to Parent the material terms and conditions of any such Takeover Proposal and the identity of the Person or group of Persons making such Takeover Proposal and shall provide Parent with copies of any documents evidencing or delivered in connection with such Takeover Proposal, and the Company shall keep Parent reasonably informed promptly (and in any event within 24 hours after knowledge of the applicable developments by an officer or director of the Company) of any material developments with respect to any such Takeover Proposal (including any material changes thereto and including by providing copies of any revised or new documents evidencing or delivered in connection with such Takeover Proposal). For the avoidance of doubt, all information provided to Parent pursuant to this Section 5.3(b5.02(c) will be subject to the terms of the Confidentiality Agreement.
(d) Neither the Board of Directors of the Company nor any committee thereof shall (i) (A) withhold (in the case of the Board of Directors of the Company) or withdraw (or modify in a manner adverse to Parent), or publicly propose to withhold (in the case of the Board of Directors of the Company) or to withdraw (or modify in a manner adverse to Parent), the Company Board and the Independent CommitteeRecommendation, (B) in the exercise case of their fiduciary dutiesthe Board of Directors of the Company, if any Takeover Proposal structured as determined in good faith a tender or exchange offer is commenced, fail to recommend against acceptance of such tender or exchange offer by the Company’s stockholders within ten business days of commencement thereof pursuant to Rule 14d-2 of the Exchange Act or (C) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Takeover Proposal (it being understood that the Board of Directors of the Company Board or any committee thereof may, and Independent Committeemay cause the Company to, may (ix) furnish information (includingif any Takeover Proposal structured as a tender or exchange offer is commenced, without limitationmake a customary “stop, confidential information) concerning Company look and listen” communication, or elect to take no position with respect to a third Person who makes Takeover Proposal until such time as a position statement is required pursuant to Rule 14e-2 under the Exchange Act without such communication or election in and of itself being considered an unsolicited request for such information for Adverse Recommendation Change or (y) disclose, to the purpose extent that any of making an Acquisition Proposal, and (ii) engage the following actions would be otherwise permitted in discussions or negotiations accordance with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution terms of this Agreement, that the Board of Directors of the Company or any committee thereof has determined that a Takeover Proposal constitutes a Superior Proposal, that the Board shall not of Directors of the Company or any committee thereof intends to make an Adverse Recommendation Change or that the Company intends to terminate this Agreement to enter into a Company Acquisition Agreement and in each case any material facts and circumstances relating thereto) (any action described in this clause (i) resolve ), other than the actions in the foregoing clause (x), being referred to withdraw, modify or qualify and/or withdraw, modify or qualify the Company as an “Adverse Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of RecommendationChange”), or (ii) authorize, execute or enter into (or cause or permit the Company or any of its Subsidiaries to execute or enter into into) any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership acquisition agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (a Takeover Proposal, other than any Acceptable Confidentiality Agreement (each, a “Company Acquisition Agreement”).
(e) . Notwithstanding anything the foregoing or any other provision of this Agreement to the contrary set forth in this Agreementcontrary, at any time prior to the receipt of obtaining the Company Shareholder Approval, (i) but not after, the Board of Directors of the Company Board or any committee thereof may (I) make a an Adverse Recommendation Change of Recommendation or (II) cause the Company to enter into an Alternative a Company Acquisition Agreement, as applicable, if the Company Board Agreement with respect to an Acquisition a Takeover Proposal not solicited in violation of this Section 5.02 and terminate this Agreement pursuant to Section 7.01(d)(ii), in either case if the Board of Directors of the Company or any committee thereof has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (Ax) there is a reasonable probability that in the case of clause (I), failure to do so would cause take such action is reasonably likely to be inconsistent with the Company Board to violate its of Directors’ fiduciary duties to the Company Shareholders under applicable Law and (By) in the case of clause (II), such Acquisition Takeover Proposal constitutes a Superior Proposal or (ii) if an eventand the failure to take such action is reasonably likely to be inconsistent with the Board of Directors’ fiduciary duties under applicable Law; provided, facthowever, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results Board of operations Directors of the Company or its Subsidiaries any committee thereof shall not, and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would shall cause the Company Board to violate its fiduciary duties to not to, take any action set forth in clause (I) or clause (II), unless (1) the Company Shareholders under applicable Law, provided that (W) Company shall have provided has given Parent at least five business days’ prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided (which notice shall specify the reasons for the Change of Recommendation described in either (i) or (ii) therefor and, if related relating to a Superior Takeover Proposal, the material terms and conditions include an unredacted copy of any such Superior Proposal (including and an unredacted copy of any relevant proposed transaction agreements, the identity of the person party making the such Superior Proposal and the ultimate beneficial owner or owners material terms thereof), (2) the Company has negotiated, and controlling persons thereofhas caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires wishes to negotiate) , to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this AgreementAgreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal (or, if the action set forth in clause (I) does not relate to a Takeover Proposal, such that the failure to effect an Adverse Recommendation Change would not be reasonably likely to be inconsistent with the Board of Directors’ fiduciary duties under applicable Law), (3) following the end of such notice period, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change Board of Recommendation, or such approval, recommendation or termination, (Y) in the case Directors of a Superior Proposal, the Company Board or any committee thereof shall have considered in good faith any changes to this Agreementsuch binding offer, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal (or, if the action set forth in clause (I) does not relate to a Takeover Proposal, that the failure to effect an Adverse Recommendation Change would continue to be reasonably likely to be inconsistent with the Board of Directors’ fiduciary duties under applicable Law) if the revisions proposed in such changes binding offer were to be given effect and (Z) it being understood that in the case event of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment change to the financial terms or any other material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers Superior Proposal (including or, if the action set forth in clause (I) does not relate to a Takeover Proposal, any amendments thereto) material change to the underlying relevant facts and circumstances), this proviso shall again apply (but the five business day period shall instead be two business days); and provided further that any purported termination of this Agreement pursuant to this sentence shall be void and of no force and effect unless the termination is in accordance with Section 7.01 and the status of any such discussions Company pays or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought causes to be initiated paid to Parent the applicable Company Termination Fee in accordance with Section 7.03 prior to or continued with, Company or any of its Representatives indicating, in connection concurrently with such notice, the identity termination. The wire instructions for payment of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions Termination Fee are attached hereto as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.Exhibit B.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(he) Nothing in this Section 5.3 5.02 or elsewhere in this Agreement shall prohibit Company, the Company or the Board of Directors of the Company or any committee thereof from (i) if any Takeover Proposal structured as a tender or exchange offer is commenced, taking and disclosing to the shareholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, Act or (ii) complying making any disclosure to the shareholders of the Company that is required by applicable Law or if the Board of Directors of the Company determines in good faith, after consultation with its the Company’s outside legal counsel, that the failure of the Board of Directors of the Company to make such disclosure obligations is reasonably likely to be inconsistent with the Board of Directors’ exercise of their duties to the Company’s shareholders under applicable Law; provided, it being understood however, that neither any such disclosure or statement that constitutes or contains an Adverse Recommendation Change shall be subject to the provisions of Section 5.02(d).
(f) As used in this Agreement, “stop, look Acceptable Confidentiality Agreement” means any confidentiality agreement entered into by the Company from and listen” letter or similar communication after the date of this Agreement that (i) contains confidentiality provisions that are not less favorable in the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information aggregate to the Company Shareholders than those contained in the Confidentiality Agreement (except that is such confidentiality agreement need not contain a counterpart of the provisions set forth in paragraph 8 of the Confidentiality Agreement or any implicit standstill provisions or otherwise restrict the making of or an amendment or modification to a Takeover Proposal (paragraph 8, together with any such provisions, the “Restrictive Provisions”), or it may contain less restrictive provisions, in either of which events, the applicable Restrictive Provisions of the Confidentiality Agreement shall be deemed to have been deleted or amended to incorporate the less restrictive provisions, as applicable, and except for such changes necessary in order for the Company to be able to comply with its obligations under this Agreement) and (ii) does not restrict the Company from providing the access, information or data required to be made provided to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and Parent pursuant to this AgreementSection 5.02.
(i) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)
Solicitation; Change in Recommendation. (a) Notwithstanding anything any other provision of this Agreement to the contrary set forth in this Agreementcontrary, during the period commencing with beginning on the execution date of this Agreement and continuing until midnight, New York City time, on April 2, 2016 (i.e., one minute after 11:59 p.m. (Eastern p.m., New York City time, on April 1, 2016) on the 30th day after the date of execution of this Agreement (the “NoGo-Shop Period Start DatePeriod”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) Representatives shall have the right, right to directly or indirectly, : (i) to initiate, solicit and/or encourage the submission of one solicit, facilitate and encourage, whether publicly or more Acquisition otherwise, Takeover Proposals from one (or more Personsinquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to a Takeover Proposal), including by furnishing way of providing access to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an one or more Acceptable Confidentiality Agreement and Agreements; provided that the Company (A) shall promptly make available concurrently provide to the Parent, or give Parent access to, any material non-public information concerning the Company and/or or its Subsidiaries that is provided to to, or for which access is provided to, any Person given such information or access which was not previously made available provided to the Parent or its officersRepresentatives and (B) shall not provide to any such Person any non-public information of or relating to Parent, directors Merger Sub or Representatives), any of their respective Affiliates or Representatives except as required by Law; and (ii) to continue, enter into, participate in and/or engage in any and maintain discussions or negotiations with one any Persons or more groups of Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one Takeover Proposals (or more Acquisition Proposals inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to a Takeover Proposal) and otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations. For purposes of clarity, the Company’s obligations under Section 5.02(b) shall commence with respect to each Person upon the expiration of the Go-Shop Period unless the Board of Directors of the Company or any other proposals that could lead committee or subcommittee thereof has made the determination referred to an Acquisition Proposal, and (iiiin Section 5.02(c)(ii) with respect to a Takeover Proposal submitted by such Person prior to the extent not otherwise prohibited by this Agreement, expiration of the Go-Shop Period and reaffirmed such determination during the period between the business day prior to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposalsthe expiration of the Go-Shop Period and the expiration of the Go-Shop Period.
(b) Except as expressly permitted by Sections 5.3(cthis Section 5.02 and except in respect of any Person that has submitted a Takeover Proposal prior to the expiration of the Go-Shop Period with respect to which the Board of Directors of the Company or any committee or subcommittee thereof has made the determination referred to in Section 5.02(c)(ii) prior to the expiration of the Go-Shop Period and (e) belowreaffirmed such determination during the period between the business day prior to the expiration of the Go-Shop Period and the expiration of the Go-Shop Period, the Company shall, shall and shall cause each of its Subsidiaries to, and shall instruct and use its commercially reasonable efforts to cause each of its and their respective Representatives to, (i) beginning on the No-Shop Period Start Dateimmediately cease any solicitation, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded PartiesPersons that may then be ongoing with respect to a Takeover Proposal and request that such Persons deliver to the Company or destroy all copies of, as defined below) that would otherwise be prohibited studies based upon and any extracts or summaries from, any non-public information of the Company in such Person’s possession or control, which non-public information was provided by this Section 5.3(b) or on behalf of the Company in connection with a Takeover Proposal on or prior to the expiration of the Go-Shop Period, and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, not, directly or indirectly, (A) not solicit initiate, solicit, or take other action to facilitate knowingly encourage (including by way of furnishing non-public information) the submission of any inquiries regarding, or the making of any proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposalconstitutes, (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Takeover Proposal. Company hereby represents that as of the date of this Agreement neither it nor , (B) engage in, continue or otherwise participate in any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect regarding, or furnish to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b)other Person any non-public information in connection with, the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information or for the purpose of making an Acquisition Proposalof, and (ii) engage in discussions or negotiations with encouraging a third Person who submits in writing an interest in making an Acquisition Takeover Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (iiC) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership acquisition agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating in connection with a Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions in this Section 5.02 applicable to the Company by any Acquisition Proposal (of the Company’s controlled Affiliates or any of its other than any Acceptable Confidentiality Agreement)Representatives, to the extent acting on its behalf or at its direction, shall be deemed to be a breach of this Section 5.02 by the Company.
(ec) Notwithstanding anything contained in Section 5.02(b) or any other provision of this Agreement to the contrary set forth in this Agreementcontrary, if at any time after the expiration of the Go-Shop Period and prior to the receipt of Offer Acceptance Time, the Company Shareholder Approvalor any of its Representatives receives a Takeover Proposal, which Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact such Person or group of Persons making the Takeover Proposal solely to clarify the terms and conditions thereof or to request that any Takeover Proposal made orally be made in writing and (ii) if the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal, then the Company and any of its Representatives may (A) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives; provided that the Company (1) shall concurrently provide to Parent, or give Parent access to, any material non-public information concerning the Company or any of its Subsidiaries that is provided to, or for which access is provided to, any such Person which was not previously provided to Parent or its Representatives and (2) shall not provide to any such Person any non-public information of or relating to Parent, Merger Sub or any of their respective Affiliates or Representatives except as required by Law and (B) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal and its or their Representatives.
(d) At any time prior to the Offer Acceptance Time, the Company shall promptly notify Parent in writing in the event that the Company or any of its Subsidiaries or its or their Representatives receives a Takeover Proposal (but in any event within one business day after Knowledge of the Company of the receipt of such Takeover Proposal) and shall disclose to Parent the material terms and conditions of any such Takeover Proposal (including a copy thereof and any financing commitment papers submitted therewith, if such Takeover Proposal is in writing) and the identity of the Person or group of Persons making such Takeover Proposal, and the Company shall keep Parent informed on a reasonably prompt basis of any material developments with respect to any such Takeover Proposal (including any material changes thereto) (and the Company shall as promptly as practicable after Knowledge of the Company of the receipt thereof provide Parent with copies of any material written materials relating to such Takeover Proposal or any material change to the financial or other material terms and conditions thereof). For the avoidance of doubt, all information provided to Parent pursuant to this Section 5.02(d) will be subject to the terms of the Confidentiality Agreement.
(e) Neither the Board of Directors of the Company nor any committee thereof or subcommittee thereof shall (i) (A) withdraw (or modify in a manner adverse to Parent), or publicly propose to withdraw (or modify in a manner adverse to Parent), the Company Board Recommendation, (B) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Takeover Proposal or (C) fail to include the Company Board Recommendation in the Schedule 14D-9 or, if any Takeover Proposal has been made public, fail to reaffirm the Company Board Recommendation upon request of Parent within the earlier of three business days prior to the then scheduled Expiration Date or 10 business days after Parent requests such reaffirmation with respect to such Takeover Proposal (provided, however, that Parent may make a Change of such request only once with respect to such Takeover Proposal unless such Takeover Proposal is subsequently publicly modified in any material respect in which case Parent may make such request once each time such modification is made) (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) execute or enter into an Alternative (or cause or permit the Company or any of its Subsidiaries to execute or enter into) any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement in connection with a Takeover Proposal, other than any Acceptable Confidentiality Agreement (each, a “Company Acquisition Agreement”). Notwithstanding the foregoing or any other provision of this Agreement to the contrary, as applicableprior to the Offer Acceptance Time, if but not after, the Board of Directors of the Company Board or any committee thereof or subcommittee thereof may (I) make an Adverse Recommendation Change or (II) cause the Company to enter into a Company Acquisition Agreement with respect to an Acquisition a Takeover Proposal not solicited in violation of this Section 5.02 and terminate this Agreement pursuant to Section 7.01(d)(ii), in either case if the Board of Directors of the Company or any committee or subcommittee thereof has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (Ax) there in the case of clause (I) where the Adverse Recommendation Change is not made in response to a reasonable probability that the Takeover Proposal, failure to do so take such action would cause be inconsistent with the Company Board to violate its directors’ fiduciary duties to the Company Shareholders under applicable Law and (y) in the case of (A) clause (I) where such Adverse Recommendation Change is made in response to a Takeover Proposal or (B) clause (II), such Acquisition Takeover Proposal constitutes a Superior Proposal or (ii) if an eventProposal; provided, facthowever, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results Board of operations Directors of the Company or its Subsidiaries any committee thereof or subcommittee thereof shall not, and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would shall cause the Company Board to violate its fiduciary duties to not to, take any such action unless (1) the Company Shareholders under applicable Law, provided that (W) Company shall have provided prior written notice to has given Parent at least three business days’ prior written notice (3an “Adverse Recommendation Change/Superior Proposal Notice”) days (it being understood and agreed that, in advance connection with an Adverse Recommendation Change in response to any Superior Proposal or any action contemplated by clause (II) of this Section 5.02(e), any material change to the financial or other material terms and conditions of such Superior Proposal shall require an additional Adverse Recommendation Change/Superior Proposal Notice (such one or more additional notices, an “Notice PeriodAdditional Notice”) to Parent and a new two business day period) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company)which notice shall, (XY) in the case of a an Adverse Recommendation Change in response to any Superior ProposalProposal or any action contemplated by clause (II) of this Section 5.02(e), prior to effecting such Change specify the identity of Recommendation, or, approving or recommending the party making such Superior Proposal and the material terms thereof and contain a copy of the agreement or terminating this Agreement proposal with respect to enter into such Superior Proposal and, (Z) in the case of an Alternative Acquisition AgreementAdverse Recommendation Change other than in connection with a Takeover Proposal, specify the basis for such Adverse Recommendation Change), (2) the Company shallhas negotiated, and shall cause has caused its Representatives toto negotiate, during the Notice Period, negotiate with Parent and its Representatives in good faith (with Parent during such notice period, to the extent that Parent desires wishes to negotiate) , to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing LetterLetters and the Limited Guarantee such that, if a Superior Proposal has been made, it would cause such Superior Proposal to no longer constitute a Superior Proposal and, in connection with an Adverse Recommendation Change, it would cause the Board or such committee or subcommittee no longer to believe that the failure to make an Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law, (3) following the end of such notice period, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change Board of Recommendation, or such approval, recommendation or termination, (Y) in the case Directors of a Superior Proposal, the Company Board or any committee thereof or subcommittee thereof shall have considered in good faith any changes to this Agreementsuch binding offer, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal Proposal, and in connection with an Adverse Recommendation Change, shall have determined that the failure to make an Adverse Recommendation Change would continue to be inconsistent with the directors’ fiduciary duties under applicable Law, in each case if the revisions proposed in such changes binding offer were to be given effect effect; and (Z) in the case provided, further, that any purported termination of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement pursuant to this sentence shall be void and paid to Parent any Termination Fee payable with respect to such of no force and effect unless the termination is in accordance with Section 7.01 and, to the extent required under the terms hereof. Any material amendment of this Agreement, the Company pays Parent the applicable Company Termination Fee and Parent Expenses in accordance with Section 7.03 prior to the material terms of or concurrently with such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z)termination.
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing in this Section 5.3 5.02 or elsewhere in this Agreement shall prohibit Company, the Company or the Board of Directors of the Company or any committee thereof or subcommittee thereof from (i) taking and disclosing to the stockholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, Act or (ii) complying making any disclosure to the stockholders of the Company that is required by applicable Law or if the Board of Directors of the Company determines in good faith, after consultation with its the Company’s outside legal counsel, that the failure of the Board of Directors of the Company to make such disclosure obligations would be inconsistent with the directors’ exercise of their duties to the Company’s stockholders under applicable Law; provided, however, that this Section 5.02(f) shall not be deemed to permit the Company or the Company Board or any committee thereof or subcommittee thereof to effect an Adverse Recommendation Change except in accordance with Section 5.02(e).
(g) As used in this Agreement, “Acceptable Confidentiality Agreement” means (i) any confidentiality agreement entered into by the Company from and after the date of this Agreement that contains confidentiality provisions that are not materially less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement, except that such confidentiality agreement need not include explicit or implicit standstill provisions that would restrict the making of or amendment or modification to Takeover Proposals, or (ii) any confidentiality agreement entered into prior to the date of this Agreement, it being understood that neither any “stopthe Company, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Lawits sole discretion, shall be deemed a modification entitled to waive or release any preexisting explicit or implicit standstill provisions or similar agreements with any Person or group of the Company Board’s approval or recommendation of the Merger and this AgreementPersons.
(i) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
Solicitation; Change in Recommendation. (a) Notwithstanding anything any other provision of this Agreement to the contrary set forth in this Agreementcontrary, during the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 5:01 p.m. (Eastern New York time) on the 30th day after the date of execution of this Agreement December 15, 2010 (the “No-Shop Period Start Date”), the Company, the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) the Company Representatives shall have the right, directly or indirectly, right to: (i) to initiate, solicit and/or and encourage the submission of one or more Acquisition Proposals from one (or more Personsinquiries, proposals or offers or other efforts or attempts that are reasonably expected to lead to an Acquisition Proposal), including by furnishing way of providing access to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an (but only pursuant to) one or more Acceptable Confidentiality Agreement and provided Agreements; provided, that the Company shall promptly make available (and, in any event within forty-eight (48) hours) provide to the Parent any material non-public information concerning the Company and/or its or the Company Subsidiaries that is provided to any Person given such access which was not previously made available provided to Parent or the Parent or its officers, directors or Representatives), ; and (ii) to continue, enter into, participate in and/or engage in any in, and maintain discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, with or assist or take any action to participate in, or facilitate any Acquisition Proposals such inquiries, proposals, discussions or any other proposals that could lead to any Acquisition Proposalsnegotiations.
(b) Except as permitted by Sections 5.3(c) and (e) belowthis Section 6.6, the Company shall, shall and shall cause each of its the Company Subsidiaries to, and shall use commercially reasonable efforts to cause each of its the Company Representatives to, (i) beginning on the No-Shop Period Start Date, (i) immediately cease and cause to be terminated any and all activities, solicitations, encouragement, discussions or negotiations with any Person (other than Excluded PartiesPersons conducted prior to the execution of this Agreement by the Company, as defined below) that would otherwise be prohibited by this Section 5.3(b) the Company Subsidiaries or any of the Company Representatives with respect to any Acquisition Proposal, and (ii) request any such Person to promptly return or destroy all confidential information concerning the Company and the Company Subsidiaries. Except as permitted by this Section 6.6, from the No-Shop Period Start Date until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with its termsArticle VIII, the Company shall not, and shall cause each of the Company Subsidiaries and the Company Representatives not to, directly or indirectly, (A) not solicit solicit, initiate, or take other action to facilitate knowingly facilitate, cooperate with or encourage (including by way of furnishing non-public information or data) any inquiries regarding, or the making of any proposal or offer that constitutes constitutes, or may could reasonably be expected to lead to to, an Acquisition Proposal, (B) not engage in, continue or otherwise knowingly participate in any way in any discussions or negotiations relating thereto regarding, or furnish to any other party information or data in furtherance thereof connection with or accept any for the purpose of encouraging or facilitating, an Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement agreement, contract or agreement in principle with respect to an Acquisition ProposalProposal or (D) enter into any agreement, contract or agreement in principle requiring the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(aNo later than two (2) from and Business Days after the No-Shop Period Start Date, the Company shall notify Parent in writing of the identity of each party (including any Excluded Party) that submitted an Acquisition Proposal prior to the No-Shop Period Start Date and shall promptly provide to Parent a written summary of the material terms of any such Acquisition Proposal (including the identity of the Person making the Acquisition Proposal). The parties agree that, notwithstanding the commencement of the obligations of the Company under this Section 6.6(b) on the No-Shop Period Start Date, the Company may continue to engage in the activities described in Section 6.6(a)(ii) with respect to any Solicited Person that, an Acquisition Proposal submitted by an Excluded Party prior to the No-Shop Period Start Date, but only for so long as such Person remains an Excluded Party and, in any event, any such activities shall terminate no later than the time that the Company Stockholder Approval has made been obtained.
(c) Notwithstanding anything to the contrary contained in Section 6.6(a) or Section 6.6(b), if at any time on or after the No-Shop Period Start Date and prior to obtaining the Company Stockholder Approval, (i) the Company or any of the Company Representatives is in receipt of a bona fide written Acquisition Proposal that from any Person, which Acquisition Proposal is made or renewed on or after the No-Shop Period Start Date and has not been subsequently withdrawn, (ii) the Company has not breached this Section 6.6, (iii) the Board and the Independent Committee determine determines in good faith faith, (a) after consultation with Company's independent financial advisors and outside financial and legal advisors) counsel, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (b) after consultation with outside legal counsel, that failure to take the action set forth in clauses (x) or (y) below would reasonably be expected to result in a Superior breach of the directors’ fiduciary duties under applicable Law, then the Company and the Company Representatives may (x) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and the Company Subsidiaries to the Person or group of Persons that has made such Acquisition Proposal; provided, that the Company shall promptly provide to Parent (and in any event within forty-eight (48) hours) any nonpublic information concerning the Company or the Company Subsidiaries that is provided to any Person given such access which was not previously provided to Parent or the Parent Representatives; and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal; provided, further, that the Company shall promptly provide to Parent (and in any event within forty-eight (48) hours) (i) a copy of any Acquisition Proposal made in writing provided to the Company or any Company Subsidiary, and the identity of the Person making the Acquisition Proposal and (ii) a written summary of the material terms of any Acquisition Proposal not made in writing. From and after the date hereof, the Company shall not grant any amendment, release or waiver under any standstill agreement without the prior written consent of Parent.
(d) Following the No-Shop Period Start Date, the Company shall keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Acquisition Proposal (each whether made before or after the No-Shop Period Start Date) on a current basis (and in any event within forty-eight (48) hours) and shall notify Parent of the status of such Solicited PersonAcquisition Proposal. The Company agrees that neither it nor any of the Company Subsidiaries will enter into any agreement with any Person subsequent to the date hereof which prohibits the Company from providing any information to Parent in accordance with this Section 6.6.
(e) On the No-Shop Period Start Date, in addition to the information required to be provided pursuant to this Section 6.6, the Company shall identify for Parent which Persons submitting Acquisition Proposals have been determined by the Board to be an “Excluded Party”)Party and a summary of the reasons for such determination. Notwithstanding anything contained in this Section 5.3(b) 6.6 to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the such Acquisition Proposal made by such party Person is withdrawn, is terminated terminated, expires or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) no longer constitutes or would reasonably be expected to result in a Superior Proposal.
(df) Except as provided expressly permitted by this Section 5.3(e6.6(f) or Section 6.6(g), at any time after the execution of this Agreement, the Company Board shall not (ii)(A) resolve fail to withdrawprovide the Board Recommendation or fail to include the Board Recommendation in the Proxy Statement, modify (B) change, qualify, withhold, withdraw or qualify and/or withdrawmodify, modify or qualify the Company Recommendation publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Parent and/or Board Recommendation, (C) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board pursuant to Rule 14d-9(f) of the Exchange Act, (D) adopt, approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company, an Acquisition Proposal or (E) enter into any contract or agreement in principle requiring the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger Sub (actions described in this clause (i) being referred to as a “Change of RecommendationCompany Adverse Recommendation Change”), ) or (ii) authorize, cause or permit the Company or any of its the Company Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement or agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (principle with any Person that submits an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than any an Acceptable Confidentiality Agreement).
(e) . Notwithstanding anything to the contrary set forth in this Agreementherein, at any time prior to the receipt of time the Company Shareholder ApprovalStockholder Approval is obtained, (i) the Company Board may make a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicablebut not after, if the Company Board with respect to an is in receipt of a bona fide written Acquisition Proposal has determined that the Board determines in good faith, after consultation with its independent financial advisors and outside legal counsel, that constitutes a Superior Proposal, after (Ain each case) there is a reasonable probability giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent (including pursuant to clause (iii) below) and after consultation with outside legal counsel, the Board determines in good faith, that the failure to do so would cause take the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and action set forth in clauses (Bx) such Acquisition Proposal constitutes a Superior Proposal or (iiy) if an event, fact, circumstance, development or occurrence that affects, or below would reasonably be expected to affect, the business, assets, operations or results result in a breach of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided then the Board may (x) make a Company Adverse Recommendation Change or (y) terminate this Agreement and enter into an agreement with respect to such Superior Proposal, provided, however, that Board may not withdraw, modify or amend the Board Recommendation in a manner adverse to Parent pursuant to the foregoing clause (Wx) or terminate this Agreement pursuant to the foregoing clause (y) unless (A) the Company shall not have provided breached this Section 6.6 and (B):
(i) such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal;
(ii) the Company has given Parent at least two (2) Business Days’ prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the person party making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, )) and has contemporaneously provided a copy of each of the relevant proposed transaction agreements to be entered into by the Company with the party making such Superior Proposal;
(iii) prior to effecting such Company Adverse Recommendation Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company has negotiated, and has caused the Company Representatives to negotiate, in good faith with Parent during such notice period to the extent Parent wishes to negotiate, to enable Parent to revise the terms of this Agreement such that it would cause such Superior Proposal to no longer constitute a Superior Proposal; and
(iv) in the event of any material change to the terms of such Superior Proposal, the Company shall, in each case, be required to deliver to Parent a new written notice (which notice shall specify the change in the material terms and conditions of any such Superior Proposal) and contemporaneously provide a copy of each of the relevant proposed transaction agreements to be entered into by the Company with the party making such Superior Proposal, the notice period shall have recommenced and the Company shall be required to comply with its obligations under this Section 6.6 with respect to such new written notice. For the avoidance of doubt, nothing in this Section 6.6(f) shall prevent or preclude Parent from proposing to revise the terms of this Agreement or taking any actions relating thereto.
(g) Notwithstanding anything to the contrary herein, prior to the time the Company Stockholder Approval is obtained, but not after, the Company may change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Board Recommendation (“Change of Recommendation”) in response to an Intervening Event if the Board has determined in good faith, after consultation with outside legal counsel, that failure to take such action would reasonably be expected to result in a breach of the directors’ fiduciary duties under applicable Law; provided, however, that prior to taking such action, (x) the Board has given Parent at least two (2) Business Days’ prior written notice of its intention to take such action, (y) the Company has negotiated, and has caused the Company Representatives to negotiate, in good faith with Parent during such notice period to the extent Parent wishes to negotiate, to enable Parent to revise the terms of this Agreement in such a manner that would obviate the need for taking such action and (z) following the end of such notice period, the Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered Agreement proposed in writing by Parent Parent, and shall have determined in good faith, after consultation with outside legal counsel, that the Superior Proposal would continue failure to constitute effect a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid would reasonably be expected to Parent any Termination Fee payable with respect to such termination result in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality breach of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Companydirectors’ fiduciary duties under applicable Law.
(h) Nothing in this Section 5.3 or elsewhere in this Agreement 6.6 shall prohibit Company, Company the Board or any committee thereof from (i) taking and disclosing to the stockholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations under if failure to do so would violate applicable Law; provided, it being understood that neither any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to Board shall not recommend that the Company Shareholders that is required to be made to stockholders tender their shares of Company Common Stock in connection with a tender or exchange offer (or otherwise approve or recommend any Acquisition Proposal) unless such stockholders under tender or exchange offer constitutes a Superior Proposal and the applicable Law or in satisfaction requirements of the Company Board’s fiduciary duties or applicable Law, this Section 6.6 shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreementhave been satisfied.
(i) For purposes of this Agreement:Section 6.6, to the extent permitted by applicable Law, the Board may act through the Special Committee.
Appears in 2 contracts
Samples: Merger Agreement (Vintage Capital Group, LLC), Merger Agreement (Caprius Inc)
Solicitation; Change in Recommendation. (a) Notwithstanding anything to Except as permitted by this Section 6.5, from the contrary set forth in this Agreement, during the period commencing with the execution date of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after Effective Time or, if earlier, the date of execution termination of this Agreement (the “No-Shop Period Start Date”)in accordance with Article VIII, the Company shall not and its shall cause each of the Company Subsidiaries and their respective Affiliates, officers, directors, agents employees, consultants, agents, advisors (including financial advisors, attorneys or accountants), Affiliates and other representatives (collectively, “Representatives”) shall have the rightnot to, directly or indirectly, (i) knowingly solicit, initiate or facilitate any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to initiatelead to, solicit and/or encourage the submission of one a Takeover Proposal, (ii) knowingly engage in, continue or more Acquisition Proposals from one otherwise participate in any discussions or more Personsnegotiations regarding, including by furnishing or furnish to any Person and/or its Affiliates, officers, directors, agents other party information or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives afford access to the business, properties, assets, books, books or records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries or any company Subsidiary, or otherwise cooperate in any way with any third party (eachother than Parent) in connection with or for the purpose of encouraging or facilitating, a “Solicited Takeover Proposal or (iii) enter into any letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar agreement or agreement in principle with respect to a Takeover Proposal. Any violation of the restrictions on the Company set forth in this Section 6.5 by any Representative of the Company or any Company Subsidiary shall be a breach of this section by the Company.
(b) Notwithstanding anything to the contrary contained herein, if at any time on or after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company or any of its Representatives receives a Takeover Proposal from any Person”, which Takeover Proposal did not result from any breach of this Section 6.5, and if the Company Board determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law and that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then the Company and its Representatives may (i) (all furnish, pursuant to an Acceptable Confidentiality Agreement Agreement, information (including non-public information) with respect to the Company and the Company Subsidiaries to the Person or group of Persons who has made such Takeover Proposal; provided that the Company shall promptly make available provide to the Parent any material non-public information concerning the Company and/or its or the Company Subsidiaries that is provided to any Person given such access which was not previously made available provided to the Parent or its officersRepresentatives; and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal; provided, directors further that the Company shall promptly provide to Parent a written summary of the material terms of any Takeover Proposal.
(c) Following the date of this Agreement, the Company shall keep Parent reasonably informed of the receipt of, or Representativesany material developments, discussions or negotiations regarding any Takeover Proposal on a prompt basis.
(d) Except as permitted by this Section 6.5(d), the Company Board shall not (i)(A) change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Company Recommendation, or (B) adopt, approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company a Takeover Proposal (actions described in this clause (i) being referred to as a “Company Adverse Recommendation Change”), (ii) to continueauthorize, enter into, participate in and/or engage in any discussions cause or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals permit the Company or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, of the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its Representatives to, (i) beginning on the No-Shop Period Start Date, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, (A) not solicit or take other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Takeover Proposal (each such Solicited Person, other than an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(bAcceptable Confidentiality Agreement) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead toeach, a Superior Proposal. “Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to or (iii) take any Acquisition Proposal action pursuant to
Section 8.1 (other than any Acceptable Confidentiality Agreementd)(ii).
(e) . Notwithstanding anything to the contrary set forth in this Agreementherein, at any time prior to the receipt of time the Company Shareholder ApprovalStockholder Approval is obtained, (i) the Company Board may make a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicable, if the Company Board with respect to an Acquisition Proposal has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has but not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Boardafter, the Company Board may effect a Company Adverse Recommendation Change of Recommendation; provided that if the Company Board has determined determines that such Company Adverse Recommendation Change is required in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause order for the Company Board to violate comply with its fiduciary duties obligations to the holders of Company Shareholders Stock under applicable Law. Notwithstanding the forgoing, provided that (W) the Company shall have provided not be entitled to effect a Company Adverse Recommendation Change unless (x) the Company has given Parent at least two Business Days’ prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal Proposal), and (including the identity y) Parent does not make, within two Business Days after receipt of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereofnotice provided for in clause (x) of this sentence, to the extent such information is reasonably available to Company)a proposal that would, (X) in the case good faith determination of the Company Board cause the Takeover Proposal to no longer constitute a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(he) Nothing in this Section 5.3 or elsewhere in this Agreement 6.5 shall prohibit Company, the Company Board or any committee thereof from (i) taking and disclosing to the stockholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying if the Company Board determines in good faith, after consultation with its disclosure obligations under outside counsel, that the failure to do so would violate applicable Law.
(f) As used in this Agreement, it being understood that neither “Takeover Proposal” shall mean any inquiry, proposal or offer from any Person (other than Parent and its Subsidiaries) or “stopgroup”, look and listen” letter or similar communication within the meaning of the type contemplated by Rule 14d-9(fSection 13(d) under of the Exchange Act, nor relating to, in a single transaction or series of related transactions, any accurate disclosure (i) acquisition, sale, lease, exchange, transfer, license or disposition of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction assets of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification and the Company Subsidiaries equal to more than 20% of the Company BoardCompany’s approval consolidated assets or recommendation to which more than 20% of the Merger Company’s revenues or earnings on a consolidated basis are attributable, (ii) acquisition of more than 20% of the outstanding Company Stock, (iii) tender offer (including a self-tender) or exchange offer that if consummated would result in any Person beneficially owning more than 20% of the outstanding Company Stock, (iv) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or (v) any combination of the foregoing types of transactions, if the sum of the percentage of consolidated assets, consolidated revenues or earnings and this AgreementCompany Stock involved is more than 20%; in each case, other than the Transaction.
(i) For purposes of this Agreement:
Appears in 2 contracts
Samples: Merger Agreement (Remark Media, Inc.), Merger Agreement (Remark Media, Inc.)
Solicitation; Change in Recommendation. (a) Notwithstanding anything to the contrary set forth in this Agreement, during the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on the 30th day after that is forty (40) days following the date of execution of this Agreement (the “No-Shop Solicitation Period Start End Date”), the Company, the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) Representatives shall have the rightright (acting under the direction of the Special Committee) to, directly or indirectly, : (i) to solicit, initiate, solicit and/or facilitate and encourage the submission any Company Acquisition Proposal from any third party, including by way of providing access to information pursuant to one or more confidentiality agreements containing terms at least as restrictive with respect to such Person as the terms contained in the Confidentiality Agreement are with respect to Parent (provided that such confidentiality agreements may provide that any standstill provisions shall terminate if there is a public announcement that a third party other than Parent has entered into an agreement with the Company with respect to an Acquisition Proposals from one Proposal or more Persons, including by furnishing such third party has publicly announced that it intends to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating commence a tender offer with respect to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”Company’s equity securities) (all pursuant to an “Acceptable Confidentiality Agreement and provided NDA”), provided, that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its or the Company Subsidiaries that provided to any third party given such access shall, to the extent not previously provided to Parent or Sub, be provided to Parent simultaneously or as promptly as reasonably practicable after it is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives), third party; and (ii) to continue, enter into, continue or otherwise participate in and/or engage in any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one any Company Acquisition Proposal or more Acquisition Proposals otherwise cooperate with or assist or participate in or facilitate any such discussions or negotiations or any other proposals that could lead effort or attempt to an make any Company Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as expressly permitted by Sections 5.3(c) and (e) belowthis Section 4.7, the Company shall, and the Company shall cause each of its instruct the Company Subsidiaries to, and shall use commercially reasonable efforts to cause each of its the Company’s Representatives to, (i) beginning on immediately after the No-Shop Solicitation Period Start End Date, or, if applicable, the Cut-Off Date: (A) cease all discussions and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) Persons that would otherwise may be prohibited by this Section 5.3(b) ongoing with respect to a Company Acquisition Proposal; and (iiB) from the No-Shop Period Start Date until the earlier of the Effective Time or termination of the date on which this Agreement in accordance with its termsis terminated pursuant to Section 6.1 hereof, not, directly or indirectly, (Ai) not solicit solicit, initiate, knowingly encourage or knowingly induce or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposalto, any inquiry, proposal or offer from any Person (Bother than Parent) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposalthat constitutes, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Company Acquisition Proposal. ; (ii) provide any material non-public information concerning the Company hereby represents that as of or the date of this Agreement neither it nor Company Subsidiaries to any of its Subsidiaries is engaged Person in connection with a Company Acquisition Proposal; or (iii) engage in any discussions or negotiations with any Person other than Parent third party concerning a Company Acquisition Proposal. For the avoidance of doubt, after the Solicitation Period End Date, the Company may continue to engage in the activities described in this Section 4.7(b) with respect to any Company Acquisition ProposalProposal submitted by a Continuing Party on or before the Solicitation Period End Date until 11:59 p.m. (New York City time) on the twentieth (20th) day following the Solicitation Period End Date (the “Cut-Off Date”), including with respect to any amended or revised Company Acquisition Proposal submitted by such Continuing Party on or before the Cut-Off Date.
(c) Notwithstanding anything to the contrary contained in Section 5.3(b4.7(b), in the event that, prior to the receipt of the Required Company Vote, the Company Board receives an written Company Acquisition Proposal, then the Company may take the following actions:
(i) contact the Person who has made such Company Acquisition Proposal to clarify and understand the Independent Committee, in terms and conditions thereof to the exercise of their fiduciary duties, as extent the Special Committee shall have determined in good faith by the that such contact is necessary to determine whether such Company Board and Independent Committee, may Acquisition Proposal constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal;
(iii) furnish information concerning the Company and the Company Subsidiaries to the Person making such Company Acquisition Proposal (including, without limitation, confidential informationand its respective Representatives) concerning Company pursuant to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and Acceptable NDA; and
(iiiii) engage in discussions or negotiations (including, as a part thereof, making counterproposals) with a third such Person who submits (and its Representatives) with respect to such Company Acquisition Proposal; provided, that prior to taking any action described in writing an interest in making an Acquisition Proposal that Section 4.7(c)(ii) or Section 4.7(c)(iii) above, the Company Board and Independent Special Committee determine shall have determined in good faith (i) (after consultation with the Company's ’s outside financial and legal advisors) that such Company Acquisition Proposal constitutes or would could reasonably be expected to result in a Superior Proposal, and (ii) (after consultation with the Company’s outside legal advisors) that failing to take any such actions would likely be inconsistent with the Special Committee’s exercise of its fiduciary duties under applicable Law.
(d) The Company shall notify Parent promptly (but in any event within twenty-four (24) hours) of (i) any Company Acquisition Proposal, (ii) any initial request for non-public information concerning the Company or any Company Subsidiary related to, or from any Person or group who would reasonably be expected to make a Company Acquisition Proposal or (iii) any initial request for discussions or negotiations related to any Company Acquisition Proposal. The Company will provide Parent promptly (but in any event within twenty-four (24) hours), the identity of the Person making such proposal, offer or inquiry or other contact and the material terms and conditions of any proposals or offers and thereafter shall promptly keep Parent informed of the status and all material developments of any such proposals, offers, inquiries or requests.
(e) Except as otherwise provided by Section 5.3(e), at any time after the execution of in this Agreement, the Company Board shall not (i) resolve to withdraw, (A) withdraw (or modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to Parent and Sub), or propose publicly to withdraw (or modify in a manner adverse to Parent and Sub), the Parent and/or Merger Sub Company Board Recommendation, (B) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Company Acquisition Proposal (any action in this clause (i) being referred to as a “Change of Recommendation”), ) or (ii) cause adopt, approve or permit recommend, or allow the Company or any of its Subsidiaries Company Subsidiary to execute or enter into into, any merger agreement, letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger share purchase agreement, option purchase agreement, joint venture asset purchase agreement, partnership share exchange agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to any a Company Acquisition Proposal (other than any an Acceptable Confidentiality AgreementNDA) or (C) if a tender offer or exchange offer for shares of Company Common Stock that constitutes a Company Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer (other than a communication that is in compliance with Rule 14d-9 and Rule 14e-2 which communication also complies with Section 4.7(g).
(e) ). Notwithstanding anything in this Agreement to the contrary set forth in this Agreementcontrary, at any time prior to the receipt of the Required Company Shareholder ApprovalVote, (x) if the Special Committee determines in good faith (after consultation with the Company’s outside legal advisors) that the failure to do so would likely be inconsistent with its fiduciary duties under applicable Law, then the Board, acting upon the recommendation of the Special Committee, may make a Change of Recommendation; or (y) if the Board determines in good faith (after consultation with the Company’s outside financial and legal advisors) that a Company Acquisition Proposal constitutes a Superior Proposal, then the Company may enter into a definitive written agreement with respect to such Superior Proposal and/or adopt, approve, endorse or recommend such tender offer or exchange offer for shares of Company Common Stock.
(f) The Company shall not be entitled to effect a Change of Recommendation or enter into a definitive agreement with respect to a Superior Proposal as permitted under Section 4.7(e) unless (i) the Company has provided written notice (a “Notice of Change ”) at least three (3) Business Days in advance to Parent and Sub advising Parent that the Board may intends to make a Change of Recommendation or enter into an Alternative Acquisition Agreementa definitive written agreement with respect to such Superior Proposal, as applicable, if and specifying the Company Board with respect to an Acquisition Proposal has determined reasons therefor, including in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes case of a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company shall have provided prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal that is the basis of the proposed action by the Board (including the identity of the person third party making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereofany financing materials related thereto, to the extent such information is reasonably available to Companyif any), (Xii) in during the case three (3) Business Day period following Parent’s and Sub’s receipt of a Superior Proposalthe Notice of Change, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, the Company shall, and shall cause its Representatives to, during in the Notice Periodcase of a Superior Proposal only, negotiate with Parent and its Representatives Sub in good faith (to the extent that Parent desires and Sub desire to negotiate) to enable Parent to propose make such adjustments in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment Agreement so that such Superior Proposal ceases to constitute a Superior Proposal and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Yiii) in the case of a Superior ProposalProposal only, following the end of the three (3) Business Day period, the Company Board and the Special Committee shall have considered determined in good faith faith, taking into account any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered Agreement proposed in writing by Parent and shall have determined Sub in response to the Notice of Change or otherwise, that the Superior Proposal would continue giving rise to the Notice of Change continues to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the financial terms or any other material terms amendment of such Superior Proposal shall require a new notice Notice of Change and Notice Period, and the Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 4.7(f); provided, that references above in this Section 4.7(f) to three (including any Acquisition Proposals). Without limiting the generality of the foregoing, 3) Business Days shall be changed to references to two (i2) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality AgreementBusiness Days.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing contained in this Section 5.3 or elsewhere in this Agreement 4.7 shall prohibit the Company, Company the Board or any committee thereof the Special Committee from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), complying with Rule 14d-9 or Item 1012(a) of Regulation M-A and Rule 14e-2 promulgated under the Exchange Act, Act in respect of any Company Acquisition Proposal or (ii) complying making any disclosure to the stockholders of the Company or taking any other action required to comply with its applicable Law (including their fiduciary duties thereunder). Any public disclosure obligations under applicable Law, it being understood that neither any by the Company relating to a Company Acquisition Proposal (other than a “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, ) shall be deemed to be a modification Change of Recommendation unless the Company Board’s Board and Special Committee expressly publicly reaffirms its approval or recommendation of this Agreement and the Merger in such disclosure, or in the case of a “stop, look and this Agreementlisten” or similar communication, in a subsequent disclosure on or before the earlier of (i) the last day of the ten (10) business day period under Rule 14d-9(f) under the Exchange Act and (ii) two (2) Business Days before the Company Stockholders’ Meeting.
(ih) For purposes of this Agreement:, (i) “Company Acquisition Proposal” means any offer or proposal made by a Person or group at any time after the date hereof that is structured to result in such Person or group acquiring, directly or indirectly, beneficial ownership of at least fifteen percent (15%) of the Assets of, equity interest in, or business of, the Company and the Company Subsidiaries, taken as a whole, pursuant to a merger, reorganization, recapitalization, consolidation, license, share exchange, business combination, tender offer, sale of shares of capital stock, sale of assets or other similar transaction, including any single or multi-step transaction or series of related transactions, in each case other than the Merger, (ii) “Superior Proposal” means any Company Acquisition Proposal that if consummated would result in a Person or group owning, directly or indirectly, (a) fifty percent (50%) or more of all classes of outstanding equity securities of the Company or of the surviving entity in a merger involving the Company or the resulting direct or indirect parent of the Company or such surviving entity or (b) fifty percent (50%) or more (based on the fair market value thereof) of the Assets of the Company and the Company Subsidiaries (including capital stock of the Company Subsidiaries), taken as a whole, that the Board or the Special Committee determined (after consultation with its outside legal counsel and financial advisor) are superior, from a financial point of view, to this Agreement, taking into account all financial, legal, regulatory and other aspects of such proposal and of this Agreement (including the relative risks of non-consummation and any changes to the terms of this Agreement proposed by Parent to the Company), and (iii) “Continuing Party” shall mean any Person or group (other than Parent or Sub) (i) from whom the Company has received, after the date of this Agreement and prior to the Solicitation Period End Date, a written Company Acquisition Proposal that the Company Board and Special Committee determines, as of the Solicitation Period End Date, in good faith (after consultation with its independent financial advisor and outside legal counsel) would reasonably be expected to result in a Superior Proposal and (ii) is engaged in good faith discussions with the Company with respect to such Company Acquisition Proposal immediately prior to the Solicitation Period End Date.
Appears in 1 contract
Solicitation; Change in Recommendation. (a) Notwithstanding anything any other provision of this Agreement to the contrary set forth in this Agreementcontrary, during the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on the 30th day after the date of execution of this Agreement May 7, 2012 (the “NoGo-Shop Period Start DatePeriod”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents employees, consultants, agents, advisors, Affiliates and other representatives (collectively, “Representatives”) shall have the right, right to directly or indirectly, : (i) to initiate, solicit and/or and encourage the submission of one Takeover Proposals (or more Acquisition Proposals from one inquiries, proposals or more Personsoffers or other efforts or attempts that are reasonably expected to lead to a Takeover Proposal), including by furnishing way of providing access to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an (but only pursuant to) one or more Acceptable Confidentiality Agreement and provided Agreements; provided, that the Company shall promptly make available provide to the Parent any material non-public information concerning the Company and/or or its Subsidiaries that is provided to any Person given such access which was not previously made available provided to the Parent or its officers, directors or Representatives), ; and (ii) to continue, enter into, participate in and/or engage in any in, and maintain discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any other proposals such inquiries, proposals, discussions or negotiations. During the Go-Shop Period, if the Company Board or a committee thereof believes in good faith that could any Takeover Proposal may reasonably be expected to lead to an Acquisition a Superior Proposal, then the Company shall promptly provide to Parent a redacted copy of such Takeover Proposal, which redacted copy shall include disclosure of the proposed price and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposalsmaterial conditions.
(b) Except as permitted by Sections 5.3(c) The Company shall and (e) below, the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its their respective Representatives to, (i) beginning at 12:00 a.m. (on New York City time) on May 8, 2012 (the “No-Shop Period Start Date”), to immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations with any Persons (other than a Qualified Go-Shop Bidder) that may be ongoing with respect to a Takeover Proposal and request that any such Person (other than Excluded Parties, as defined belowa Qualified Go-Shop Bidder) that would otherwise be prohibited by this Section 5.3(b) promptly return or destroy all confidential information concerning the Company and the Company’s Subsidiaries and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, not to, directly or indirectly, (A) not solicit solicit, initiate or take other action to knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes constitutes, or may could reasonably be expected to lead to an Acquisition to, a Takeover Proposal, (B) not engage in, continue or otherwise participate in any way in any discussions or negotiations relating thereto regarding, or furnish to any other Person information in furtherance thereof connection with or accept any Acquisition Proposalfor the purpose of encouraging or facilitating, except to notify such person as to the existence of the provisions of this Section 5.3, and a Takeover Proposal or (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition a Takeover Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any commencement of the actions described in obligations of the Company under this Section 5.3(a) 5.2(b), from and after the No-Shop Period Start Date Date, the Company may continue to engage in the activities described in clauses (A) through (C) of this Section 5.2(b) with respect to a Qualified Go-Shop Bidder, including with respect to any Solicited Person amended Takeover Proposal submitted by a Qualified Go-Shop Bidder following the No-Shop Period Start Date; provided, however, that, the obligations set forth in Section 5.2(d) and Section 5.2(e) shall apply at all times with respect to any such Qualified Go-Shop Bidder and its Takeover Proposal.
(c) Notwithstanding anything to the contrary contained in Section 5.2(b), if at any time on or after the No-Shop Period Start Date and prior to obtaining the Company Stockholder Approval, the Company or any of its Representatives receives a written Takeover Proposal from any Person or group of Persons, which Takeover Proposal was made or renewed on or after the No-Shop Period Start Date and did not result from any material breach of this Section 5.2, (A) the Company and its Representatives may contact such Person or group of Persons to clarify the terms and conditions thereof and (B) if the Company Board, or any committee thereof, determines in good faith, after consultation with independent financial advisors and outside legal counsel, that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, then the Company and its Representatives may (x) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Takeover Proposal; provided that the Company shall promptly provide to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent or its Representatives; and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal. Prior to taking any of the actions referred to in this Section 5.2(c), the Company shall notify Parent and Merger Sub that it proposes to furnish non-public information and/or enter into discussions or negotiations as provided in this Section 5.2(c).
(d) Following the No-Shop Period Start Date, has the Company shall keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Takeover Proposal (whether made before or after the No-Shop Period Start Date) on a bona fide Acquisition Proposal current basis and upon the request of Parent shall apprise Parent of the status of such Takeover Proposal. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing any information to Parent in accordance with this Section 5.2. Following the No-Shop Period Start Date, if the Company Board and receives a Takeover Proposal, then the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected Company shall promptly provide to result in Parent a Superior Proposal (each redacted copy of such Solicited PersonTakeover Proposal, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to which redacted copy shall include disclosure of the contraryidentity of the Person that submitted such Takeover Proposal, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as well as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board proposed price and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposalmaterial conditions.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(de) Except as provided expressly permitted by this Section 5.3(e5.2(e) or Section 5.2(f), at any time after the execution of this Agreement, the Company Board shall not (i) resolve (A) fail to withdraw, modify or qualify and/or withdraw, modify or qualify recommend to its stockholders that the Company Stockholder Approval be given (the “Company Board Recommendation”) or fail to include the Company Board Recommendation in the Proxy Statement, (B) change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or in a manner adverse to Parent modify, the Parent and/or Merger Sub Company Board Recommendation, (C) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act or (D) adopt, approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company a Takeover Proposal (actions described in this clause (i) being referred to as a “Change of RecommendationCompany Adverse Recommendation Change”), or (ii) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement or agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating principle with respect to any Acquisition Takeover Proposal (other than any an Acceptable Confidentiality Agreement) (each, a “Company Acquisition Agreement”).
, (eiii) take any action pursuant to Section 7.1(d)(ii), or (iv) terminate, amend, release, modify or fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the Company in respect of or in contemplation of a Takeover Proposal. Notwithstanding anything to the contrary set forth in this Agreementherein, at any time prior to the receipt of time the Company Shareholder ApprovalStockholder Approval is obtained, (i) but not after, the Company Board may make a Company Adverse Recommendation Change of Recommendation or enter into an Alternative a Company Acquisition Agreement, as applicable, if the Company Board Agreement with respect to an Acquisition a Takeover Proposal has determined not solicited in good faitha manner that constitutes a material violation of this Section 5.2, after consultation with its financial advisors and outside legal counselor terminate, that (A) there is a reasonable probability that the failure amend, release, modify or fail to do so would cause enforce any provision of, or grant any permission, waiver, or request under, any standstill, confidentiality or similar agreement entered into by the Company Board in respect of or in contemplation of a Takeover Proposal, if and only if, prior to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) taking such Acquisition Proposal constitutes a Superior Proposal or (ii) if an eventaction, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its independent financial advisors and outside legal counsel, (x) that there is a reasonable probability that the failure to do so take such action would cause be inconsistent with the directors’ fiduciary duties under applicable Law and (y) that such Takeover Proposal constitutes a Superior Proposal; provided, however, that in connection with the Takeover Proposal of any bidder (w) the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company shall have provided prior written notice to has given Parent at least three (3) days in advance (the “Notice Period”) business days’ prior written notice of its intention to take such action and provided (which notice shall include an unredacted copy of the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, an unredacted copy of the material terms relevant proposed transaction agreements and conditions an unredacted copy of any financing commitments relating thereto (other than the same type of redactions permitted by Section 4.5)), (x) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereofnotice period, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires wishes to negotiate) , to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment Letters and the Licensor Warrant Amendment, as Guaranty such that it would alleviate the need for a Change of Recommendation, or cause such approval, recommendation or termination, (Y) in the case of Superior Proposal to no longer constitute a Superior Proposal, (y) following the end of such notice period, the Company Board shall have considered in good faith any changes proposed revisions to this Agreement, the Financing LetterLetters, the Related Person Investment Commitment, Rollover Letter and the Letter Amendment or the Licensor Warrant Amendment offered Guaranty proposed in writing by Parent Parent, and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes revisions were to be given effect and (Zz) in the case event of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment change to the material terms of such Superior Proposal Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (w) above and the notice period shall require a new have recommenced, except that the notice and Notice Period, and Company period shall be required at least two business days; and provided, further that the Company has complied in all material respects with its obligations under this Section 5.2 and provided, further, that any purported termination of this Agreement pursuant to comply again this sentence shall be void and of no force and effect, unless the Company termination is in accordance with Section 7.1 and the requirements of these subclauses (W) through (Z)Company pays Parent the applicable Termination Fee in accordance with Section 7.3 prior to or concurrently with such termination.
(f) Notwithstanding anything to the contrary herein, prior to the time the Company agrees Stockholder Approval is obtained, but not after, the Company Board may change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or, in a manner adverse to Parent, modify, the Company Board Recommendation (“Change of Recommendation”) if the Company Board has determined in good faith, after consultation with outside legal counsel, that it will keep failure to take such action would be inconsistent with the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoingdirectors’ fiduciary duties under applicable Law; provided, however, that, prior to taking such action, (ix) the Company agrees that it will promptly Board has given Parent at least three business days’ prior written notice of its intention to take such action, (andy) the Company has negotiated, and has caused its Representatives to negotiate, in any eventgood faith with Parent during such notice period, within forty-eight (48) hours) notify to the extent Parent if any proposals or offers with respect wishes to an Acquisition Proposal are received by Company or its Representatives indicatingnegotiate, in connection with such noticeto enable Parent to revise the terms of this Agreement, the identity of the Person or group of Persons making such offer or proposalFinancing Letters, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) Rollover Letter and the status of any Guaranty in such discussions or negotiationsa manner that would obviate the need for taking such action, including any change in Company’s intentions as previously notified and (iiz) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any end of its Representatives indicating, in connection with such noticenotice period, the identity of Company Board shall have considered in good faith any revisions to this Agreement, the person or group of Persons Financing Letters, the Rollover Letter and the status Guaranty proposed in writing by Parent, and shall have determined in good faith, after consultation with independent financial advisors and outside legal counsel, that failure to effect a Change of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality AgreementRecommendation would be inconsistent with the directors’ fiduciary duties under applicable Law.
(g) Other than with respect Except to the Financing Letterextent provided in Section 5.2(d) or Section 5.2(e), the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing nothing in this Section 5.3 or elsewhere in this Agreement 5.2 shall prohibit Company, the Company Board or any committee thereof from from: (i) taking and disclosing to the stockholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, if failure to do so would violate applicable Law or (ii) complying with its disclosure obligations under applicable Law, it being understood that neither making any “stop, look and listen” letter or similar communication of to the type contemplated by Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act, nor any accurate disclosure of factual information to in either case, if the Company Shareholders Board has determined in good faith, after consultation with legal counsel, that the failure to do so would create a material risk of a breach by the Company Board of its fiduciary duties under applicable Law; provided that any disclosures (other than those made pursuant to clause (ii) of this Section 5.2(g)) permitted under this Section 5.2(g) that is required to be made to such stockholders under not an express rejection of any applicable Law Takeover Proposal or in satisfaction an express reaffirmation of the Company Board’s fiduciary duties or applicable Law, Board Recommendation shall be deemed a modification Company Adverse Recommendation Change.
(h) As used in this Agreement, “Takeover Proposal” shall mean any inquiry, proposal or offer from any Person (other than Parent and its Subsidiaries) or “group”, within the meaning of Section 13(d) of the Exchange Act, relating to, in a single transaction or series of related transactions, any (A) acquisition of assets of the Company Board’s approval and its Subsidiaries equal to 20% or recommendation more of the Merger Company’s consolidated assets or to which 20% or more of the Company’s revenues or earnings on a consolidated basis are attributable, (B) acquisition of 20% or more of the outstanding Company Common Stock, (C) tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the outstanding Company Common Stock, (D) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or (E) any combination of the foregoing types of transactions if the sum of the percentage of consolidated assets, consolidated revenues or earnings and this AgreementCompany Common Stock involved is 20% or more; in each case, other than the Transactions.
(i) For purposes of this Agreement:
Appears in 1 contract
Solicitation; Change in Recommendation. (a) Notwithstanding anything any other provision of this Agreement to the contrary set forth in this Agreementcontrary, during the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on August 20, 2017 (the 30th day after “Go-Shop Period”), Company (acting under the date direction of execution the Special Committee), its Subsidiaries, their respective affiliates and their respective Representatives shall have the right to directly or indirectly: (i) initiate, solicit, facilitate and encourage Acquisition Proposals (or inquiries, proposals or offers or other efforts or attempts that may to lead to an Acquisition Proposal), including by way of providing access to non-public information pursuant to (but only pursuant to) an Acceptable Confidentiality Agreement with each recipient thereof and, in each case, subject to compliance with the other provisions of this Agreement Section 6.8; provided, that Company shall promptly (in any event, within one (1) business day) provide to Parent any non-public information concerning Company or its Subsidiaries that is provided to any person given such access which was not previously provided or made available to Parent or its Representatives, and Company shall withhold such portions of documents or information, or provide pursuant to customary “clean-room” or other appropriate procedures, to the extent relating to any commercially sensitive or relate to pricing or other matters that are highly sensitive or competitive in nature if the exchange of such information (or portions thereof) would reasonably be materially harmful to the operations of Company; (ii) enter into, engage in, and maintain discussions or negotiations with respect to Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations; and (iii) amend or grant a waiver or release under a standstill or similar agreement with respect to any Equity Interests of Company or any of its Subsidiaries solely to the extent necessary to permit the counterparty to such standstill or similar agreement to make a non-public Acquisition Proposal to the Company Board or the Special Committee during the Go-Shop Period.
(b) Company shall, and shall cause each of its Subsidiaries and their respective Representatives (i) beginning at 12:00 a.m. (on New York City time) on August 21, 2017 (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) shall have the right, directly or indirectly, (i) to initiateimmediately cease and terminate any solicitation, solicit and/or encourage the submission of one encouragement, discussions or more negotiations with any persons with respect to an Acquisition Proposals from one Proposal or more Persons, a potential Acquisition Proposal (including by furnishing to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representativesactivities permitted by Section 6.8(a)), (ii) terminate access to continueany physical or electronic data rooms related to a possible Acquisition Proposal (other than a data room utilized solely by Parent, enter into, participate in and/or engage in its affiliates and their respective Representatives and not any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, third person) and (iii) to the extent not otherwise prohibited request that any such person and its Representatives promptly return or destroy all confidential information concerning Company and its Subsidiaries theretofore furnished thereto by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals on behalf of Company or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, shall cause each of its Subsidiaries toSubsidiaries, and shall use commercially reasonable efforts to cause destroy all analyses and other materials prepared by or on behalf of such person that contain, reflect or analyze such information, in each case, in accordance with the applicable confidentiality agreement between Company or any of its Representatives toaffiliates, (i) beginning on one hand, and such person, on the No-Shop Period Start Date, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) and (ii) from hand. From the No-Shop Period Start Date (and, solely with respect to a Holdover Proposal, the Delayed No-Shop Period Start Date) until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with Article VIII, Company shall not, and shall cause each of its termsSubsidiaries and their respective Representatives not to, directly or indirectly, (A) not solicit solicit, initiate, knowingly facilitate or take other action to facilitate knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making or announcement of any proposal or offer that constitutes constitutes, or may would reasonably be expected to lead to to, an Acquisition Proposal, (B) not conduct or engage in, enter into, continue or otherwise participate in any way in any discussions or negotiations relating thereto with, or furnish any information or data to, any person that is seeking to make, has made or, to the knowledge of Company, is considering making an Acquisition Proposal or otherwise take such actions in furtherance thereof connection with or accept any for the purpose of knowingly encouraging or knowingly facilitating an Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not approve, endorse or recommend any Acquisition Proposal or (D) enter into any letter of intent, agreement or agreement in principle Company Acquisition Agreement with respect to an Acquisition Proposal. Notwithstanding Proposal (including an Acceptable Confidentiality Agreement).
(c) Except as expressly permitted by Section 6.8(d), neither the foregoingCompany Board nor any committee thereof (including the Special Committee) shall (i) (A) fail to recommend to its stockholders that the Requisite Company Vote be given (the “Company Board Recommendation”), Company(B) change, its Subsidiaries qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify in a manner adverse to Parent, the Company Board Recommendation, (C) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (other than a temporary “stop, look and its Representatives may take and continue listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, or an express rejection of such tender offer or exchange offer or reaffirmation of the Company Board Recommendation), (D) fail to recommend against acceptance of any tender offer or exchange offer within ten (10) business days of the commencement of such offer, (E) adopt, approve, endorse or recommend, or publicly propose to approve or recommend to the stockholders of Company an Acquisition Proposal or (F) agree to take any of the foregoing actions (actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may clause (i) furnish information (includingbeing referred to as a “Company Adverse Recommendation Change”), without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e)authorize, at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement or agreement in principle, memorandum of understanding, or other similar agreement in principle, relating to or providing for any Acquisition Proposal or an acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar definitive agreement (an “Alternative Acquisition Agreement”) relating providing for or with respect to any Acquisition Proposal (other than each, a “Company Acquisition Agreement”), (iii) except as contemplated by Section 6.8(a), grant any Acceptable Confidentiality Agreementwaiver, amendment or release under any standstill or similar agreement with respect to any class of Equity Interests of the Company or any of its Subsidiaries, any confidentiality agreement or Takeover Statute or (iv) take any action pursuant to Section 8.1(e).
(ed) Notwithstanding anything to the contrary set forth in this Agreementherein, at any time prior to the receipt No-Shop Period Start Date (and, solely with respect to a Holdover Proposal, the Delayed No-Shop Period Start Date), but not after, the Company Board or the Special Committee may, in each case so long as the Company has complied in all material respects with the requirements of and not breached in any material respect this Section 6.8, (A) make a Company Adverse Recommendation Change in response to an Intervening Event or Superior Proposal and/or (B) terminate this Agreement pursuant to Section 8.1(e) to enter into a Company Acquisition Agreement with respect to a Superior Proposal, in each case, if and only if, prior to taking of the action in either clause (A) or (B), the Company Shareholder ApprovalBoard or a duly authorized committee thereof (including the Special Committee) concludes in good faith, after consultation with Special Committee Financial Advisor and outside legal counsel, (x) that failure to take such action would be reasonably expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) that, if applicable, such Acquisition Proposal constitutes a Superior Proposal; provided, further, that, prior to taking the action in either clause (A) or (B) above, (i) the Company Board may make a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicable, if and the Company Board with respect to an Acquisition Proposal Special Committee has determined in good faith, after consultation with its financial advisors and outside legal counsel, that given Parent at least five (A5) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company shall have provided business days’ prior written notice to Parent at least three (3) days in advance (such period, the “Notice Period” and any such notice with respect to a Superior Proposal, the “Initial Superior Proposal Notice”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) andwhich notice shall include, if related to as applicable, a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity reasonably detailed written summary of the person making Intervening Event or unredacted copies of the Superior Proposal and any material transaction agreements and financing commitments (provided that such financing commitments may include customary redactions) and a written summary of the ultimate beneficial owner or owners and controlling persons thereofmaterial terms of any Superior Proposal not made in writing, to the extent such information is reasonably available to Companyincluding any financing commitments relating thereto), (Xii) in the case of a Superior Proposal, prior to effecting after providing such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreementnotice, Company shallshall have negotiated, and shall cause have caused its Representatives toto negotiate, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) during the Notice Period to enable Parent to propose make such adjustments in writing a binding offer to effect revisions to the terms and conditions of this Agreement, Agreement and the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate permit the need for a Change Company Board or the Special Committee not to take such action, and (iii) following the end of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior ProposalNotice Period, the Company Board or a duly authorized committee thereof (including the Special Committee, if such committee still exists), shall have considered in good faith any changes proposed revisions to this Agreement, Agreement and the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered proposed in writing by Parent Parent, and shall have determined determined, after consultation with outside legal counsel and the Special Committee Financial Advisor, that failure to take such actions continues to be reasonably expected to be inconsistent with the Superior Proposal would continue to constitute a Superior Proposal directors’ fiduciary duties under applicable Law even if such changes proposed revisions by the Parent to this Agreement and the Financing were to be given effect effect, and (Ziv) in the case event of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment change to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required (or amendment thereof) occurring prior to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date Company shall, in each case, have delivered to Parent an additional notice (each such notice, a “Superior Proposal Change Notice”) consistent with that described in clause (i) above and the Notice Period in clause (i) shall have recommenced and the condition in clauses (ii) and (iii) shall have occurred again, except that the Notice Period shall be at least two (2) business days (rather than the five (5) business days otherwise contemplated by clause (i) above). In the event that the No-Shop Period Start Date is scheduled to begin within (a) five (5) business days of delivery of an Initial Superior Proposal Notice or (b) two (2) business days of delivery of a Superior Proposal Change Notice (such applicable notice period, the “Holdover Notice Period”), the No-Shop Period Start Date solely with respect to the Acquisition Proposal that is the subject of the Holdover Notice Period (the “Holdover Proposal”) will be extended until 5:00 p.m., Eastern time, on the business day immediately following the final day of such Holdover Notice Period (the “Delayed No-Shop Period Start Date”).
(e) From and after the date hereof, Company agrees that it will shall notify Parent as promptly as reasonably practicable (and, but in any event, event within fortytwenty-eight four (4824) hours) notify in the Parent if any non-public information is requested fromevent that (i) Company, its Subsidiaries, affiliates or any of their respective Representatives receives (A) an Acquisition Proposal or any amendment thereto or (B) any request for discussions or negotiations are sought negotiations, any request for access to be initiated the properties or continued with, books and records of Company or any of its Subsidiaries of which Company or any of its Subsidiaries or any of their respective Representatives indicatingis or has become aware, or any request for information relating to Company or any of its Subsidiaries, in connection with each case, by any person that could reasonably be expected to be considering making an Acquisition Proposal or (ii) Company enters into any Acceptable Confidentiality Agreement (which notice shall include a copy of such notice, Acceptable Confidentiality Agreement). Such notice to Parent shall indicate the identity of the person or group of Persons persons making such Acquisition Proposal or amendment thereto and the status provide (x) an unredacted copy of any such discussions written Acquisition Proposal or negotiations, including any change in Company’s intentions as previously notifiedamendment thereto (including, in each case pursuant to an Acceptable Confidentiality Agreement.
case, financing commitments with customary redaction) and any material transaction documents, and (gy) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing or amendment thereto not made in this Section 5.3 or elsewhere in this Agreement shall prohibit Companywriting, Company Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations under applicable Law, it being understood that neither any “stop, look and listen” letter or similar communication written summary of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure material terms and conditions of factual information to the Company Shareholders that is required to be made to each such stockholders under applicable Law Acquisition Proposal or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreement.
(i) For purposes of this Agreement:amendment
Appears in 1 contract
Samples: Merger Agreement (Neff Corp)
Solicitation; Change in Recommendation. (a) Notwithstanding anything The Company shall, and shall cause its Subsidiaries to, and shall instruct and cause its and its Subsidiaries’ Representatives to, immediately cease all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal. From the contrary set forth in this Agreementdate hereof until the earlier of the Offer Closing or the date, during the period commencing with the execution of if any, on which this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after the date of execution of this Agreement (the “No-Shop Period Start Date”)is terminated pursuant to Section 8.1, the Company shall not, and shall cause its Subsidiaries and their respective Affiliates, officersSubsidiaries, directors, agents officers and representatives (“Representatives”) employees not to, and shall have the rightnot authorize or permit any of its or its Subsidiaries other Representatives to, directly or indirectly, (i) to solicit, initiate, solicit and/or knowingly encourage or knowingly facilitate any Takeover Proposal or the submission making or consummation thereof or the making of one any inquiry, offer or more Acquisition Proposals from one proposal that would reasonably be expected to lead to any Takeover Proposal, (ii) enter into, engage in or more Personsotherwise participate in any discussions (except to notify such Person of the existence of the provisions of this Section 6.3) or negotiations regarding, including by furnishing or furnish to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating in connection with, any Takeover Proposal, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal, (iii) approve or recommend, or make any public statement approving or recommending, a Takeover Proposal, (iv) enter into any letter of intent, merger agreement or other agreement providing for a Takeover Proposal, (v) submit any Takeover Proposal to a vote of the Company and/or its Subsidiaries stockholders of the Company, (vi) amend or by affording grant any waiver or release under any standstill or similar agreement with respect to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, class of equity securities of the Company and/or or any of its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives)Subsidiaries, (iivii) to continueapprove any transaction under, enter into, participate in and/or engage in any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead third party becoming an “interested stockholder” under, Section 203 of the DGCL or (viii) resolve or agree to an Acquisition Proposal, and (iii) to do any of the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the foregoing. The Company shall, and shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its and their Representatives to, (i) beginning on the No-Shop Period Start Date, immediately cease and cause to be terminated any discussions data room access (or negotiations with other diligence access) of, any Person (other than Excluded Partiesand its Representatives with respect to a Takeover Proposal, as defined below) and use reasonable best efforts to obtain the return from all such Persons or cause the destruction of all copies of nonpublic information previously provided to such parties by the Company, its Subsidiaries or its or their Representatives. Without limiting the foregoing, it is understood that any action taken by any Subsidiary of the Company or any Representative of the Company or any of its Subsidiaries that, if taken by the Company, would otherwise be prohibited by a violation of this Section 5.3(b6.3, shall be deemed to be a breach of this Section 6.3 by the Company.
(b) Notwithstanding the limitations set forth in Section 6.3(a), if at any time on or after the date hereof and prior to the Offer Closing, the Company or any of its Subsidiaries, or any of its or their respective Representatives, receives an unsolicited, bona-fide written Takeover Proposal from any Person or group of Persons, which Takeover Proposal did not result from a breach of this Section 6.3, the Company, the Company Board (or a duly authorized committee thereof) and their Representatives may engage in negotiations and discussions with, and furnish any information and other access to, any Person making such Takeover Proposal and any of its Representatives or potential sources of financing but, in each case, only if the Company Board (iior duly authorized committee thereof) from first determines in good faith, after consultation with the No-Shop Period Start Date until the earlier of the Effective Time Company’s outside legal and financial advisors, that such Takeover Proposal is or termination of this Agreement in accordance with its terms, (A) not solicit or take other action to facilitate any inquiries or the making of any proposal that constitutes or may could reasonably be expected to lead to a Superior Proposal and that not taking such action would be inconsistent with its fiduciary duties under applicable Law; provided that prior to furnishing any material non-public information to any such Person, the Company receives from the Person making such Takeover Proposal an Acquisition Acceptable Confidentiality Agreement. The Company will notify Parent in writing (i) promptly (but in no event more than 48 hours) of the receipt of any such Takeover Proposal, or of any inquiry, offer or proposal that would reasonably be expected to lead to, or any request for non-public information in connection with, a Takeover Proposal and will communicate the material terms of any such Takeover Proposal inquiry, offer or proposal (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to including the existence identity of the provisions Person making such Takeover Proposal inquiry, offer or proposal) to Parent and will keep Parent reasonably apprised of this Section 5.3, the status of any such Takeover Proposal (including a change in the price or any material terms or scope thereof) and (Cii) not enter into any letter of intent, agreement or agreement in principle with respect at least three (3) Business Days prior to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take taking any of the actions described in Section 5.3(athe preceding sentence and at least three (3) from and after the No-Shop Period Start Date with respect to any Solicited Person that, Business Days prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that convening of any meeting of the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(bany committee thereof) to the contrary, consider any Excluded Party Takeover Proposal or taking any such action. The Company shall cease promptly provide to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or Parent any non-public information concerning the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries that is engaged in discussions provided to such Person (to the extent such information was not previously provided to Parent or negotiations with any Person other than Parent with respect to any Acquisition Proposalits Representatives).
(c) Notwithstanding Section 5.3(b)Except as otherwise provided in this Agreement, the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve (A) fail to make, withdraw, modify amend or qualify and/or modify, or publicly propose to withhold, withdraw, modify amend or qualify the Company Recommendation modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (B) approve, endorse, adopt or recommend, or publicly propose to approve, endorse, adopt or recommend, to the stockholders of the Company a Takeover Proposal or Superior Proposal, (C) fail to include the Company Board Recommendation in the Schedule 14D-9 or any amendment thereof when disseminated to the Company’s stockholders, (D) fail to reject and recommend against any Takeover Proposal or any tender offer or exchange offer for Company Common Stock (including, for these purposes, by taking no position with respect to the acceptance by the stockholders of the Company of a tender offer or exchange offer, which shall constitute a failure to reject such Takeover Proposal) within ten (10) Business Days after the making public thereof, or failing to publicly reconfirm the Company Board Recommendation within two (2) Business Days after any request from Parent and/or Merger Sub to do so, (E) make any public statement inconsistent with the Board Recommendation or (F) resolve or agree to take any of the foregoing actions (any of the foregoing actions being referred to as a “Change of RecommendationCompany Adverse Recommendation Change”), or (ii) cause or permit authorize the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principlemerger, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating with respect to any Acquisition Takeover Proposal (other than any an Acceptable Confidentiality Agreement)) or (iii) resolve or agree to change or modify the election that this Agreement and the Merger be governed pursuant to Section 251(h) of the DGCL.
(ed) Notwithstanding anything to the contrary set forth in this AgreementSection 6.3, at any time prior to the receipt of the Company Shareholder ApprovalBoard (or a duly authorized committee thereof) may make a Company Adverse Recommendation Change in response to either (x) a Superior Proposal or (y) an Intervening Event (and, solely with respect to a Superior Proposal, terminate this Agreement pursuant to Section 8.1(d)(ii)), if:
(i) the Company Board may make (or a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicable, if the Company Board with respect to an Acquisition Proposal has determined duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law (after taking into account all adjustments to the terms of this Agreement that may be offered by Parent pursuant to this Section 6.3(d)); and
(ii) solely with respect to a Superior Proposal: (A) there is a reasonable probability that the failure to do so would cause the Company Board provides Parent prior written notice of its intent to violate its fiduciary duties make any Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 8.1(d)(ii), together with a copy of the acquisition agreement (and any other relevant transaction documents) with respect to such Superior Proposal, if any, at least five (5) Business Days prior to taking such action, to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is received a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company shall have provided prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) Superior Proposal and, if related to a Superior Proposal, the material terms and conditions of absent any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions revision to the terms and conditions of this Agreement, the Financing LetterCompany Board has resolved to effect a Company Adverse Recommendation Change or to terminate this Agreement pursuant to Section 8.1(d)(ii), which notice shall include the Related identity of the Person Investment Commitmentmaking such inquiry, proposal or request and specify in reasonable detail the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need basis for a such Company Adverse Recommendation Change of Recommendation, or such approval, recommendation or termination, (Y) in including the case material terms and conditions of a Superior Proposal, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute (a “Notice of Superior Proposal”) (it being understood that such Notice of Superior Proposal if such changes were to shall not in itself be given effect deemed a Company Adverse Recommendation Change and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation that any material revision or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new written notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any eventsuch case, within forty-eight a new five (485) hoursBusiness Day notice period), (B) notify Parent during such five (5) Business Day period, if any proposals or offers with respect to an Acquisition Proposal are received requested by Parent, the Company or shall have made its Representatives indicatingreasonably available to discuss with Parent’s Representatives, and shall have negotiated in connection good faith with such noticeParent and its Representatives (to the extent Parent desires to negotiate), any proposed modifications to the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of this Agreement so that such Takeover Proposal would cease to constitute a Superior Proposal, (C) Parent has not, within such five (5) Business Day period, made a written, binding and irrevocable offer capable of being accepted by the Company to alter the terms or conditions of this Agreement such that such Takeover Proposal, after consultation with the Company’s outside legal counsel and outside financial advisors (and taking into account any proposals adjustment or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, modification of the status and terms of this Agreement proposed in writing by Parent), would cease to constitute a Superior Proposal and (D) the Company Board, after taking into account any such proposals or offers (including any amendments thereto) modifications to the terms of this Agreement and the status Transactions agreed to by Parent and Merger Sub after receipt of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any continues to believe that such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.Takeover Proposal constitutes a Superior Proposal; and
(giii) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case solely with respect to any Acquisition Proposal involving Intervening Event: (A) at least five (5) Business Days before making a Company Adverse Recommendation Change with respect to such Intervening Event, the Company notifies Parent in writing of its intention to do so, specifies the reasons therefor and provides a reasonably detailed description of such Intervening Event; and (B) if Parent makes a written, binding and irrevocable offer capable of being accepted by the Company during such five (5) Business Day period to alter the terms or conditions of this Agreement, the Company Board, after taking into consideration the adjusted terms and conditions of this Agreement as proposed by Parent, continues to determine in good faith (after consultation with the Company’s outside legal counsel and outside financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed in writing by Parent)) that the failure to make such Company Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law.
(he) Nothing in this Section 5.3 or elsewhere contained in this Agreement shall prohibit Company, the Company or the Company Board (or any a duly authorized committee thereof thereof) from (i) taking and disclosing to the stockholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 ) under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A promulgated or Rule 14d-9 under the Exchange Act, (ii) complying making any disclosure to the stockholders of the Company if the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to make such disclosure obligations under would be inconsistent with applicable Law, it being understood that neither (iii) informing any Person of the existence of the provisions contained in this Section 6.3 or (iv) making any “stop, look and listen” letter or similar communication to the stockholders of the type contemplated by Company pursuant to Rule 14d-9(f) under the Exchange Act, nor Act (or any accurate disclosure of factual information similar communication to the Company Shareholders stockholders of the Company). No disclosures under this Section 6.3(e) shall be, in themselves, a breach of this Section 6.3 or a basis for Parent to terminate this Agreement pursuant to Article VIII; provided, that is required any such disclosure pursuant to clauses (i) or (ii) above shall be deemed to be made a Company Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the Company Board Recommendation (x) in such communication or (y) within two (2) Business Days after requested to do so by Parent.
(f) As used in this Agreement, “Takeover Proposal” shall mean any bona fide inquiry, proposal or offer from any Person (other than Parent, Merger Sub and any of its Affiliates thereof) or “group” (as such stockholders under applicable Law term is defined in the Exchange Act) to purchase or otherwise acquire, in satisfaction a single transaction or series of related transactions, (i) assets of the Company Boardand its Subsidiaries (including securities of Subsidiaries, but excluding sales of assets in the ordinary course of business) that account for 20% or more of the Company’s fiduciary duties consolidated assets (based on the fair market value thereof) or applicable Lawfrom which 20% or more of the Company’s revenues or earnings on a consolidated basis are derived, shall be deemed (ii) 20% or more of the outstanding Company Common Stock pursuant to a modification merger, consolidation, amalgamation or other business combination, sale of shares of capital stock, tender offer, exchange offer, share exchange, share repurchase reorganization, recapitalization, liquidation, dissolution, extraordinary dividend, or similar transaction involving the Company or any of its Subsidiaries or (iii) any direct or indirect acquisition or transaction, including any tender offer or exchange offer which, if consummated would result in the stockholders of the Company Board’s approval or recommendation immediately preceding such transaction holding less than 80% of the Merger and this Agreementequity in the Company or the surviving or resulting entity of such transaction immediately following such transaction, or any combination of the foregoing.
(i) For purposes of this Agreement:
Appears in 1 contract
Solicitation; Change in Recommendation. (a) Notwithstanding anything to the contrary set forth in this Agreement, during During the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after the date of execution of this Agreement the Proxy Statement is mailed to Seller’s stockholders (the “No-Shop Period Start Date”), the Company Seller and its Subsidiaries subsidiaries and their respective Affiliates, officers, directors, agents employees, agents, advisors and other representatives (such Persons, together with the subsidiaries of Seller, collectively, the “Seller Representatives”) shall have the right, directly or indirectly, right to: (i) to initiate, solicit and/or solicit, facilitate and encourage the submission of one or more Acquisition Proposals from one or more PersonsTakeover Proposals, including by furnishing way of providing access to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any other Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, group of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement Persons and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives), (ii) to continue, enter into, participate in and/or engage in any into and maintain or continue discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Takeover Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, with or assist or take any action to participate in, or facilitate any Acquisition Proposals inquiries, proposals, discussions or any other proposals that could lead to any Acquisition Proposalsnegotiations regarding a Takeover Proposal.
(b) Except as permitted by Sections 5.3(c) this Section 5.3 Seller and (e) below, the Company its subsidiaries and their respective directors and officers shall, shall cause each of its Subsidiaries to, and Seller shall use its commercially reasonable efforts to cause each of its Representatives tothe other Seller Representatives, to (i) beginning on the No-Shop Period Start Date, immediately cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) Persons that would otherwise may be prohibited by this Section 5.3(b) ongoing with respect to a Takeover Proposal; and (ii) from the No-Shop Period Start Date until the earlier of Closing Date or, if earlier, the Effective Time or termination of this Agreement in accordance with its termsArticle IX, not (A) not solicit solicit, initiate or take knowingly facilitate or encourage (including by way of furnishing non-public information other action to facilitate than in the ordinary course of business) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to result in, a Takeover Proposal or (B) engage in, continue or otherwise participate in any discussions or negotiations regarding a Takeover Proposal.
(c) Notwithstanding anything to the contrary contained in Section 5.3(b), if, at any time on or after the No-Shop Period Start Date and prior to obtaining the Seller Stockholder Approval, Seller or any of the Seller Representatives receives a written Takeover Proposal by any Person or group of Persons, which Takeover Proposal was made on or after the No-Shop Period Start Date, (i) Seller and the Seller Representatives may contact such Person or group of Persons to clarify the terms and conditions thereof and (ii) if the Board or any committee thereof determines in good faith (A) after consultation with its investment bankers, that such Takeover Proposal constitutes or may could reasonably be expected to lead to an Acquisition Proposal, a Superior Proposal and (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposalafter consultation with outside legal counsel, except that failure to notify take such person as to action could be inconsistent with its fiduciary duties under applicable law, Seller and the existence of the provisions of this Section 5.3, and Seller Representatives may (Cx) not enter into any letter of intent, agreement or agreement in principle furnish information (including non-public information) with respect to an Acquisition Seller and its subsidiaries to the Person or group of Persons who has made such Takeover Proposal and (y) engage in or otherwise participate in discussions and negotiations regarding such Takeover Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from From and after the No-Shop Period Start Date, Seller shall promptly advise Purchaser of the receipt by Seller of any Takeover Proposal made on or after the No-Shop Period Start Date or any request for non-public information made by any Person or group of Persons that has informed Seller it is considering making a Takeover Proposal or any request for discussions or negotiations with respect Seller or the Seller Representatives relating to a Takeover Proposal, and Seller shall provide to Purchaser, at Seller’s option, either (i) a copy of any Solicited such Takeover Proposal made in writing provided to Seller or any of its subsidiaries (which, at the option of Seller, may be redacted to remove the identity of the Person that, prior or group of Persons making the Takeover Proposal) or (ii) a written summary of the material terms of such Takeover Proposal (it being understood that such material terms do not have to include the identity of the Person or group of Persons making the Takeover Proposal). Following the No-Shop Period Start Date, has made Seller shall keep Purchaser informed on a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) prompt basis of any material change to the contrary, terms and conditions of any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Takeover Proposal.
(d) Except as provided by set forth in this Section 5.3(e)5.3, at neither the Board nor any time after the execution of this Agreement, the Company Board committee thereof shall not (i) resolve withdraw or modify, or propose publicly to withdraw, withdraw or modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to Purchaser, the Parent and/or Merger Sub (a “Change of Seller Recommendation”), or ; (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal (any of the actions referred to in the foregoing clauses (i) and (ii), whether taken by the Board or a committee thereof, an “Adverse Recommendation Change”); or (iii) cause or permit the Company allow Seller or any of its Subsidiaries subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other any similar agreement (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal or understanding (other than any Acceptable Confidentiality Agreement)a confidentiality agreement) to implement a Takeover Proposal.
(ei) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the receipt Seller Stockholder Approval, if Seller has received a Takeover Proposal that has not been withdrawn or abandoned and that the Board or any committee thereof concludes in good faith constitutes a Superior Proposal after giving effect to all of the Company Shareholder Approvaladjustments which may be offered by Purchaser pursuant to clause (2) below, if applicable, the Board or any committee thereof may (ix) the Company Board may make a an Adverse Recommendation Change of Recommendation or and/or (y) terminate this Agreement to enter into an Alternative Acquisition Agreement, as applicable, if the Company Board a definitive agreement with respect to an Acquisition such Superior Proposal has determined if the Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate be inconsistent with its fiduciary duties under applicable law; provided, however, if the Adverse Recommendation Change pursuant to the Company Shareholders under applicable Law and foregoing clause (Bx) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date and/or termination of this Agreement (an “Intervening Event”) occurs or becomes known pursuant to the Company Boardforegoing clause (y) is to be effected, in either case, as the Company result of receipt by Seller of a Superior Proposal, then the Board or a committee thereof may not effect a an Adverse Recommendation Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties pursuant to the Company Shareholders under applicable Law, provided that foregoing clause (Wx) Company and/or terminate this Agreement pursuant to the foregoing clause (y) unless:
(1) Seller shall have provided prior written notice to Parent Purchaser, at least three (3) five calendar days in advance (the “Notice Period”) ), of its intention to take effect an Adverse Recommendation Change in response to such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related Superior Proposal and/or to terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent it being understood that such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the material terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall do not have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, include the identity of the Person or group of Persons making the Superior Proposal), and contemporaneously with providing such offer notice shall have provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents (provided that such copies of such agreements and other material documents, may exclude the identity of the Person or proposalgroup of Persons making the Superior Proposal); and
(2) prior to effecting such Adverse Recommendation Change in response to a Superior Proposal and/or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, Seller shall, and shall cause its legal and financial advisors to, during the material Notice Period, negotiate with Purchaser in good faith (to the extent Purchaser desires to negotiate) to make such adjustments to the terms and conditions of this Agreement that are proposed by Purchaser so that such Takeover Proposal ceases to constitute a Superior Proposal. In the event that during the Notice Period any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreementsrevisions are made to the Superior Proposal to which the proviso in this Section 5.3(e)(i) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) applies and the status of Board or any committee thereof in its good faith judgment determines such discussions or negotiations, including revisions are material (it being agreed that any change in Company’s intentions as previously notified the purchase price in such Superior Proposal shall be deemed a material revision), Seller shall be required to deliver a new written notice to Purchaser and to comply with the requirements of this Section 5.3(e)(i) with respect to such new written notice, except that the Notice Period shall be reduced to two calendar days.
(ii) following In addition to the No-Shop Period Start Daterights of the Board and any committee thereof under clause (i) of this Section 5.3(e) and notwithstanding anything to the contrary in this Agreement, Company agrees that it will promptly (andat any time prior to obtaining the Seller Stockholder Approval, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, Board or any discussions committee thereof may, other than in response to any Takeover Proposal, (x) make an Adverse Recommendation Change and/or (y) terminate this Agreement if the Board or negotiations are sought any committee thereof determines in good faith, after consultation with outside counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable law; provided that prior to taking either of the actions set forth in the foregoing clause (x) or clause (y), Seller shall take the actions set forth in clauses (1) and (2) of Section 5.3(e)(i) above as if a Superior Proposal that is not an Excluded Superior Proposal had been received by Seller. No Adverse Recommendation Change shall change the approval of the Board for purposes of causing any state takeover statute or other state law to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, inapplicable to the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality AgreementContemplated Transactions.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(hf) Nothing in this Section 5.3 or elsewhere contained in this Agreement shall prohibit Company, Company Seller or the Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a)complying with Rules 14a-9, Rule 14d-9 or Item 1012(a) of Regulation M-A 14e-2 promulgated under the Exchange ActAct of 1934, (ii) complying as amended, or from making any disclosure to the Seller’s stockholders if, in the good faith judgment of the Board or any committee thereof, after consultation with outside counsel, the failure to do so would be inconsistent with its disclosure obligations fiduciary duties under applicable Law, it being understood that neither any “stop, look and listen” letter law or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is otherwise required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreementlaw.
(i) For purposes of this Agreement:
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Solicitation; Change in Recommendation. (a) Notwithstanding anything to Except as permitted by this Section 6.5, from the contrary set forth in this Agreement, during the period commencing with the execution date of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after Effective Time or, if earlier, the date of execution termination of this Agreement (the “No-Shop Period Start Date”)in accordance with Article VIII, the Company shall not and its shall cause each of the Company Subsidiaries and their respective Affiliates, officers, directors, agents employees, consultants, agents, advisors (including financial advisors, attorneys or accountants), Affiliates and other representatives (collectively, “Representatives”) shall have the rightnot to, directly or indirectly, (i) knowingly solicit, initiate or facilitate any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to initiatelead to, solicit and/or encourage the submission of one a Takeover Proposal, (ii) knowingly engage in, continue or more Acquisition Proposals from one otherwise participate in any discussions or more Personsnegotiations regarding, including by furnishing or furnish to any Person and/or its Affiliates, officers, directors, agents other party information or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives afford access to the business, properties, assets, books, books or records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries or any company Subsidiary, or otherwise cooperate in any way with any third party (eachother than Parent) in connection with or for the purpose of encouraging or facilitating, a “Solicited Takeover Proposal or (iii) enter into any letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar agreement or agreement in principle with respect to a Takeover Proposal. Any violation of the restrictions on the Company set forth in this Section 6.5 by any Representative of the Company or any Company Subsidiary shall be a breach of this section by the Company.
(b) Notwithstanding anything to the contrary contained herein, if at any time on or after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company or any of its Representatives receives a Takeover Proposal from any Person”, which Takeover Proposal did not result from any breach of this Section 6.5, and if the Company Board determines in good faith, after consultation with outside legal counsel, that failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law and that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal, then the Company and its Representatives may (i) (all furnish, pursuant to an Acceptable Confidentiality Agreement Agreement, information (including non-public information) with respect to the Company and the Company Subsidiaries to the Person or group of Persons who has made such Takeover Proposal; provided that the Company shall promptly make available provide to the Parent any material non-public information concerning the Company and/or its or the Company Subsidiaries that is provided to any Person given such access which was not previously made available provided to the Parent or its officersRepresentatives; and (ii) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal; provided, directors further that the Company shall promptly provide to Parent a written summary of the material terms of any Takeover Proposal.
(c) Following the date of this Agreement, the Company shall keep Parent reasonably informed of the receipt of, or Representativesany material developments, discussions or negotiations regarding any Takeover Proposal on a prompt basis.
(d) Except as permitted by this Section 6.5(d), the Company Board shall not (i)(A) change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Company Recommendation, or (B) adopt, approve or recommend, or publicly propose to approve or recommend to the stockholders of the Company a Takeover Proposal (actions described in this clause (i) being referred to as a “Company Adverse Recommendation Change”), (ii) to continueauthorize, enter into, participate in and/or engage in any discussions cause or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals permit the Company or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, of the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its Representatives to, (i) beginning on the No-Shop Period Start Date, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) and (ii) from the No-Shop Period Start Date until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, (A) not solicit or take other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Takeover Proposal (each such Solicited Person, other than an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(bAcceptable Confidentiality Agreement) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead toeach, a Superior Proposal. “Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating or (iii) take any action pursuant to any Acquisition Proposal (other than any Acceptable Confidentiality AgreementSection 8.1(d)(ii).
(e) . Notwithstanding anything to the contrary set forth in this Agreementherein, at any time prior to the receipt of time the Company Shareholder ApprovalStockholder Approval is obtained, (i) the Company Board may make a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicable, if the Company Board with respect to an Acquisition Proposal has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has but not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Boardafter, the Company Board may effect a Company Adverse Recommendation Change of Recommendation; provided that if the Company Board has determined determines that such Company Adverse Recommendation Change is required in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause order for the Company Board to violate comply with its fiduciary duties obligations to the holders of Company Shareholders Stock under applicable Law. Notwithstanding the forgoing, provided that (W) the Company shall have provided not be entitled to effect a Company Adverse Recommendation Change unless (x) the Company has given Parent at least two Business Days’ prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal Proposal), and (including the identity y) Parent does not make, within two Business Days after receipt of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereofnotice provided for in clause (x) of this sentence, to the extent such information is reasonably available to Company)a proposal that would, (X) in the case good faith determination of the Company Board cause the Takeover Proposal to no longer constitute a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(he) Nothing in this Section 5.3 or elsewhere in this Agreement 6.5 shall prohibit Company, the Company Board or any committee thereof from (i) taking and disclosing to the stockholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying if the Company Board determines in good faith, after consultation with its disclosure obligations under outside counsel, that the failure to do so would violate applicable Law.
(f) As used in this Agreement, it being understood that neither “Takeover Proposal” shall mean any inquiry, proposal or offer from any Person (other than Parent and its Subsidiaries) or “stopgroup”, look and listen” letter or similar communication within the meaning of the type contemplated by Rule 14d-9(fSection 13(d) under of the Exchange Act, nor relating to, in a single transaction or series of related transactions, any accurate disclosure (i) acquisition, sale, lease, exchange, transfer, license or disposition of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction assets of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification and the Company Subsidiaries equal to more than 20% of the Company BoardCompany’s approval consolidated assets or recommendation to which more than 20% of the Merger Company’s revenues or earnings on a consolidated basis are attributable, (ii) acquisition of more than 20% of the outstanding Company Stock, (iii) tender offer (including a self-tender) or exchange offer that if consummated would result in any Person beneficially owning more than 20% of the outstanding Company Stock, (iv) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or (v) any combination of the foregoing types of transactions, if the sum of the percentage of consolidated assets, consolidated revenues or earnings and this AgreementCompany Stock involved is more than 20%; in each case, other than the Transaction.
(i) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Banks.com, Inc.)
Solicitation; Change in Recommendation. (a) Notwithstanding anything to the contrary set forth in this Agreement, during the period commencing with the execution of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after the date of execution of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) shall have the right, directly or indirectly, (i) to initiate, solicit and/or encourage the submission of one or more Acquisition Proposals from one or more Persons, including by furnishing to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives), (ii) to continue, enter into, participate in and/or engage in any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) belowthis Section 5.02, the Company shall, shall and shall cause each of its Subsidiaries and its and their officers and directors to, and shall instruct and use commercially its reasonable best efforts to cause each of its other Representatives to, (i) beginning on the No-Shop Period Start Dateimmediately cease any solicitation, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) Persons with respect to a Takeover Proposal that would otherwise be prohibited by this Section 5.3(b) existed on or prior to the date hereof and (ii) from the No-Shop Period Start Date date hereof until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, not, directly or indirectly, (A) not solicit initiate, solicit, or take other action to facilitate knowingly encourage (including by way of furnishing non-public information) the submission of any inquiries regarding, or the making of any proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposalconstitutes, (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Takeover Proposal. Company hereby represents that as of the date of this Agreement neither it nor , (B) engage in, continue or otherwise participate in any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect regarding, or furnish to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b)other Person any non-public information in connection with, the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information or for the purpose of making an Acquisition Proposalof, and (ii) engage in discussions or negotiations with encouraging a third Person who submits in writing an interest in making an Acquisition Takeover Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (iiC) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership acquisition agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating providing for a Takeover Proposal. The Company shall promptly request the return or destruction of all information furnished by or on its behalf to any Acquisition Person and its Representatives with respect to a Takeover Proposal on or prior to the date hereof. 35 (other than any Acceptable Confidentiality Agreement).
(eb) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary set forth in this Agreementcontrary, if at any time on or after the date hereof and prior to the receipt of obtaining the Company Shareholder Stockholder Approval, the Company or any of its Representatives receives a written Takeover Proposal, which Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company Board and its Representatives may make a Change contact such Person or group of Recommendation Persons making the Takeover Proposal solely to clarify the terms and conditions thereof or enter into an Alternative Acquisition Agreement, as applicable, to request that any Takeover Proposal made orally be made in writing and (ii) if the Board of Directors of the Company Board with respect to an Acquisition Proposal has determined determines in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there such Takeover Proposal constitutes or is reasonably likely to result in a reasonable probability that Superior Proposal and the failure to do so would cause take the following actions is reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company Board and any of its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to violate its fiduciary duties an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as Person or group of the date of this Agreement (an “Intervening Event”) occurs Persons who has made such Takeover Proposal and its or becomes known to the Company Board, the Company Board may effect a Change of Recommendationtheir respective Representatives; provided that the Company Board has determined shall promptly (and in good faith, any event within 24 hours) provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access which was not previously provided to Parent or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal and its or their Representatives. (c) The Company shall promptly (and in any event within 24 hours after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability knowledge of receipt by an officer or director of the Company) notify Parent in the event that the failure to do so would cause the Company Board to violate or any of its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company Subsidiaries or its or their Representatives receives a Takeover Proposal and shall have provided prior written notice disclose to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Takeover Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposalTakeover Proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requestsdocuments evidencing or delivered in connection with such Takeover Proposal, proposals or offers, including proposed agreements) and thereafter the Company shall keep Parent reasonably informed, on a prompt basis, informed promptly (and in any event within 24 hours after knowledge of the status and terms applicable developments by an officer or director of the Company) of any material developments with respect to any such proposals or offers Takeover Proposal (including any amendments material changes thereto) , and the status including by providing copies of any such discussions revised or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, new documents evidencing or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, delivered in connection with such noticeTakeover Proposal). For the avoidance of doubt, all information provided to Parent pursuant to this Section 5.02(c) will be subject to the identity terms of the person or group of Persons and the status of any such discussions or negotiationsConfidentiality Agreement. As used in this Agreement, including any change in Company’s intentions as previously notified, in each case pursuant to an “Acceptable Confidentiality Agreement.
” means (gx) Other than with respect any confidentiality agreement entered into by the Company from and after the date of this Agreement that contains confidentiality provisions that are not less favorable in the aggregate to the Financing LetterCompany than those contained in the Confidentiality Agreement, except that such confidentiality agreement need not include explicit or implicit standstill provisions or otherwise restrict the Letter Amendmentmaking of or amendment or modification to Takeover Proposals, or (y) any confidentiality agreement entered into prior to the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by date of this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit Company, Company Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations under applicable Law, it being understood that neither any “stopthe Company, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Lawits sole discretion, shall be deemed a modification entitled to waive or release any preexisting explicit or implicit standstill provisions or similar agreements with any Person or group of the Company Board’s approval or recommendation of the Merger and this Agreement.
(i) For purposes of this Agreement:Persons. 36
Appears in 1 contract
Samples: Merger Agreement
Solicitation; Change in Recommendation. (a) Notwithstanding anything Except as expressly permitted by this Section 5.02, the Company shall, and shall cause each of its Subsidiaries and its and their respective officers, directors and employees to, and shall use its reasonable best efforts to the contrary set forth in this Agreementcause its and their other Representatives to, during the period commencing with the execution of this Agreement and continuing until 11:59 p.m. (Eastern timei) on the 30th day after the date of execution of this Agreement hereof (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Affiliatesimmediately (A) cease any solicitation, officersencouragement, directorsdiscussions, agents and representatives (“Representatives”) shall have the right, directly or indirectly, (i) to initiate, solicit and/or encourage the submission of one or more Acquisition Proposals from one or more Persons, including by furnishing to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives), (ii) to continue, enter into, participate in and/or engage in any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts to cause each of its Representatives to, (i) beginning on the No-Shop Period Start Date, cease and cause to be terminated any discussions communications or negotiations with any Person persons with respect to a Takeover Proposal, potential Takeover Proposal or any inquiry, offer or proposal with respect to, or that would reasonably be expected to lead to, a Takeover Proposal, in each case, that existed prior to the date of this Agreement, (B) request the prompt return or destruction of all confidential information previously furnished in connection therewith and (C) immediately terminate all physical and electronic dataroom access previously granted to any such person or its Representatives, in each case, other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) with respect to Parent and its Affiliates and Representatives and (ii) from the No-Shop Period Start Date until the earlier of Company obtains the Effective Time Company Stockholder Approval, not, directly or termination of this Agreement in accordance with its termsindirectly, (A) not initiate, solicit or take other action to facilitate any inquiries knowingly facilitate, induce or encourage (including by way of furnishing non-public information) the making or submission of any Takeover Proposal or any inquiry, offer or proposal with respect to, or that would reasonably be expected to lead to, a Takeover Proposal, (B) enter into, engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information or access in connection with, in response to or for the purpose of, facilitating or encouraging, a Takeover Proposal or any inquiry, offer or proposal that constitutes would reasonably be expected to lead to, a Takeover Proposal (other than Parent and its Affiliates and Representatives), (C) approve, endorse or may recommend, or publicly propose to approve, endorse or recommend, any Takeover Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition a Takeover Proposal, (BD) not participate waive any standstill or similar agreement, (E) take any action to make any provision of any “fair price,” “moratorium,” “control share acquisition,” or other form of antitakeover statute or regulation (or any related provision in the Company’s governing documents) applicable to any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and transactions contemplated by a Takeover Proposal and/or (CF) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take authorize any of the actions described foregoing.
(b) Notwithstanding anything contained in Section 5.3(a) from and 5.02(a), if at any time on or after the No-Shop Period Start Date with respect to any Solicited Person that, and prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that obtaining the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement).
(e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Company Shareholder Stockholder Approval, (i) the Company Board may make receives a Change bona fide written Takeover Proposal, which Takeover Proposal did not result from any breach of Recommendation this Section 5.02 by the Company, its Subsidiaries or enter into an Alternative Acquisition Agreementany of its or their Representatives, as applicable, if (ii) the Company Board with respect to an Acquisition Proposal has determined determines in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Takeover Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries lead to a Superior Proposal and that has not occurred or is unknown to (iii) the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined determines in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability counsel that the failure to do so take the actions set forth in the following clauses (x) and (y) would cause the Company Board to violate be inconsistent with its fiduciary duties to the Company Shareholders under applicable Law, provided that then the Company may (Wand may authorize its Representatives to) Company shall have provided prior written notice to Parent at least three (3x) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Acceptable Confidentiality Agreement with such person or group and furnish pursuant thereto information (including non-public information) with respect to the Company shalland its Subsidiaries to such person or group and (y) engage in or otherwise participate in discussions or negotiations with, and shall cause only with, such person or group with respect to such Takeover Proposal. In the event that, pursuant to clause (x) of the foregoing sentence, the Company furnishes to a person or group of persons making a Takeover Proposal any material non-public information concerning the Company or its Representatives to, during the Notice Period, negotiate with Affiliates that has not previously been furnished or made available to Parent and its Representatives Representatives, the Company shall at the same time, or substantially concurrently, furnish such information to Parent. As used in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letterterm “Acceptable Confidentiality Agreement” means any confidentiality agreement entered into by the Company from and after the date hereof that contains provisions that are not materially less favorable to the Company than those contained in the Confidentiality Agreement, except that such confidentiality agreement need not restrict the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendationmaking of, or such approvalamendment or modification to, recommendation or termination, (Y) in the case of a Superior Proposal, any confidential Takeover Proposal to the Company Board shall have considered Board. It is agreed that any violation of the restrictions set forth in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including 5.02 by any Acquisition Proposals). Without limiting the generality Representative of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment Subsidiaries or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, Representatives shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving constitute a breach of this Section 5.02 by the Company.
(h) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit Company, Company Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations under applicable Law, it being understood that neither any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreement.
(i) For purposes of this Agreement:
Appears in 1 contract
Samples: Merger Agreement (Radius Global Infrastructure, Inc.)
Solicitation; Change in Recommendation. (a) Notwithstanding anything to the contrary set forth in Except as expressly permitted by this Agreement, during the period commencing with the execution of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after the date of execution of this Agreement (the “No-Shop Period Start Date”)Section 5.02, the Company shall and shall cause each of its Subsidiaries and its and their respective Affiliates, officers, directors, agents officers and representatives employees to, and shall instruct and use reasonable best efforts to cause its other Representatives to, (“i)(A) immediately cease any direct or indirect solicitation, discussions, communications or negotiations with, or assistance to, any Persons with respect to any proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal and (B) promptly following the date hereof (and in any event within two (2) Business Days) 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”, and (ii) shall have the rightnot, directly or indirectly, (iA) to initiate, solicit and/or encourage or knowingly encourage, facilitate or assist in (including by way of furnishing non-public information) the submission of one any inquiries regarding, or more Acquisition Proposals from one the making or more Personsannouncement of any proposal or offer that constitutes, including by furnishing or would reasonably be expected to lead to, a Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions, communications or negotiations regarding (except to notify any Person of the provisions of this Section 5.02), or furnish to any other Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives provide access to the businessproperties, propertiesbooks, Contracts, assets, booksrecords, records personnel or other non-public information, or to the personnel, Representatives of the Company and/or and its Subsidiaries (eachin connection with, or for the purpose of, encouraging, facilitating or assisting, the making or announcement of any proposal or offer that constitutes, or would reasonably be expected to lead to, a “Solicited Person”Takeover Proposal, (C) approve, adopt or enter into, or publicly recommend, endorse or declare advisable any confidentiality agreement (all other than an Acceptable Confidentiality Agreement), letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement providing for or relating to a Takeover Proposal or (D) waive, terminate, modify, amend, release or assign any provisions of any confidentiality or standstill agreement (or similar agreement) to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement (it being understood that the Company shall be entitled to waive or release any preexisting explicit or implicit standstill provisions or similar agreements with any Person or group of Persons to the extent reasonably necessary to allow a third party to make a Takeover Proposal that does not result from a material violation of Section 5.02(a), if the Board of Directors of the Company has determined in good faith, after consultation with its outside legal counsel, that failure to so waive or release such standstill would be inconsistent with its fiduciary duties under applicable Law).
(b) Notwithstanding anything contained in Section 5.02(a), if at any time on or after the date hereof and prior to obtaining the Company Stockholder Approval, the Company or any of its Representatives receives a written Takeover Proposal, which Takeover Proposal did not result from any material breach of Section 5.02(a), (i) the Company and its Representatives may contact and engage in discussions with such Person or group of Persons making the Takeover Proposal or its or their Representatives to the extent reasonably necessary to clarify the terms and conditions thereof or to notify such Person or group of Persons or its or their Representatives of the provisions of this Section 5.02 and (ii) if the Board of Directors of the Company or any duly authorized committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that (A) such written Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal and (B) the failure to take the following actions would be inconsistent with the directors’ fiduciary duties under applicable Law (provided that the Company shall promptly (and in any event within twenty-four hours) notify Parent in writing of such determination), then the Company and any of its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making such Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company and its Subsidiaries and/or provide access to the properties, books, Contracts and records of the Company and its Subsidiaries, in each case, to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives and financing sources; provided that the Company shall promptly make available substantially concurrently provide to the Parent any material non-public information concerning the Company and/or or any of its Subsidiaries that is provided to any Person given such access which was not previously made available provided to the Parent or its officersRepresentatives, directors and (y) engage in or Representatives), (ii) to continue, enter into, otherwise participate in and/or engage in any discussions or negotiations with one the Person or more group of Persons and/or making such Takeover Proposal and its or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals Representatives. The Company agrees that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, it shall cause each of its Subsidiaries tonot, and shall use commercially reasonable efforts to cause each of its Representatives Subsidiaries not to, (i) beginning on the No-Shop Period Start Date, cease and cause to be terminated enter into any discussions confidentiality or negotiations other agreement with any Person (other than Excluded Parties, as defined belowrelating to a Takeover Proposal or otherwise) that prohibits or otherwise would prevent the provision of any information to Parent in accordance with, or the Company from otherwise be prohibited by complying with, this Agreement. The parties hereto acknowledge and agree that any contacts, disclosures, discussions or negotiations permitted under this Section 5.3(b) and (ii) from 5.02(b), including any public announcement that the No-Shop Period Start Date until Company or the earlier Board of Directors of the Effective Time Company has made any determination contemplated under this Section 5.02(b) to take or termination engage in any such actions, shall not constitute an Adverse Recommendation Change.
(c) Following the date of this Agreement and prior to the Company Stockholder Approval, the Company shall (i) promptly (and in accordance with any event within twenty-four hours of receipt by the Company or any of its terms, (ASubsidiaries or their respective Representatives) not solicit notify Parent in the event that the Company or take other action to facilitate any inquiries of its Subsidiaries or the making of its or their Representatives receives a Takeover Proposal or any inquiry or proposal or requests for non-public information or discussions that constitutes or may reasonably be expected to lead to an Acquisition Proposala Takeover Proposal and shall disclose to Parent the material terms and conditions of any such Takeover Proposal or inquiry or proposal and the identity of the Person or group of Persons making such Takeover Proposal or inquiry or proposal, (ii) keep Parent reasonably informed on a current basis of the status, details and material developments with respect to any such Takeover Proposal or inquiry or proposal (including in each case any material changes thereto) and (iii) provide to Parent as soon as practicable after receipt or delivery thereof (and in any event within twenty-four hours of receipt by the Company or any of its Subsidiaries or their respective Representatives) copies of all correspondence and other written and electronic material exchanged between the Company or any of its Subsidiaries or Representatives and any Person that describes any of the material terms or conditions of any Takeover Proposal or inquiry or proposal. For the avoidance of doubt, all information provided to Parent pursuant to this Section 5.02(c) will be subject to the terms of the Nondisclosure Agreement.
(d) None of the Board of Directors of the Company or any duly authorized committee thereof shall (i)(A) fail to include the Company Board Recommendation in the Proxy Statement, (B) not participate in any way in any discussions withdraw or negotiations relating thereto qualify (or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result modify in a Superior Proposal (each such Solicited Person, an “Excluded Party”manner adverse to Parent). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine publicly propose to withdraw or qualify (or modify in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases a manner adverse to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(bParent), the Company Board and Recommendation, (C) recommend or endorse the Independent Committeeapproval or adoption of, in the exercise of their fiduciary dutiesor approve, as determined in good faith adopt or otherwise declare advisable, or publicly propose to recommend, endorse, approve, adopt or otherwise declare advisable, any Takeover Proposal or (D) fail to recommend against acceptance by the holders of Company Board and Independent CommitteeCommon Stock of a tender or exchange offer that constitutes a Takeover Proposal within ten (10) Business Days of commencement thereof pursuant to Rule 14d-2 of the Exchange Act, may or recommend in favor of, or publicly state that it takes no position with respect to, or that it is unable to take a position with respect to, any such offer (each action described in this clause (i) furnish information (including, without limitation, confidential information) concerning Company being referred to a third Person who makes as an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company “Adverse Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of RecommendationChange”), or (ii) execute or enter into (or authorize, publicly recommend, cause or permit the Company or any of its Subsidiaries to execute or enter into into) any confidentiality agreement, letter of intent, memorandum of understanding, agreement in principle, acquisition merger agreement, merger acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) providing for or relating to any Acquisition Proposal (a Takeover Proposal, other than any Acceptable Confidentiality Agreement (each, a “Company Acquisition Agreement”).
(e) . Notwithstanding anything the foregoing or any other provision of this Agreement to the contrary set forth in this Agreementcontrary, at any time prior to obtaining the receipt Company Stockholder Approval, but not after, the Board of Directors of the Company Shareholder Approvalor any duly authorized committee thereof may (I) make an Adverse Recommendation Change in response to an Intervening Event or (II) with respect to a Takeover Proposal that did not result from a material breach of Section 5.02(a), (ix) make an Adverse Recommendation Change or (y) terminate this Agreement pursuant to Section 7.01(d)(ii) and cause the Company Board may make a Change of Recommendation or to enter into an Alternative a Company Acquisition AgreementAgreement with respect to such Takeover Proposal, as applicablein either case, if the Board of Directors of the Company Board with respect to an Acquisition Proposal or any duly authorized committee thereof has determined in good faith, after consultation with its financial advisors and outside legal counsel, that (Ax) there is a reasonable probability that in the case of clauses (I) and (II), failure to do so take such action would cause be inconsistent with the Company Board to violate its directors’ fiduciary duties to the Company Shareholders under applicable Law and (By) in the case of clause (II), such Acquisition Takeover Proposal constitutes a Superior Proposal or (ii) if an eventProposal; provided, facthowever, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results Board of operations Directors of the Company or its Subsidiaries any duly authorized committee thereof shall not, and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would shall cause the Company Board to violate its fiduciary duties to not to, take any action set forth in clause (I) or clause (II), unless (1) the Company Shareholders under applicable Law, provided that (W) Company shall have provided has given Parent at least five Business Days’ prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action (which notice itself shall not constitute an Adverse Recommendation Change, and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal (including which notice shall specify the identity of the person party making the such Superior Proposal and the ultimate beneficial owner or owners material terms thereof or, in the case of an Intervening Event, specifying the details thereof), (2) the Company has negotiated, and controlling persons thereofhas caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires wishes to negotiate) , to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this AgreementAgreement such that it would cause such Takeover Proposal to no longer constitute a Superior Proposal or for such Intervening Event to no longer warrant a Company Adverse Recommendation Change and (3) following the end of such notice period, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change Board of Recommendation, or such approval, recommendation or termination, (Y) in the case Directors of a Superior Proposal, the Company Board or any duly authorized committee thereof shall have considered in good faith any changes to this Agreementsuch binding offer, the Financing Letterand shall, the Related Person Investment Commitmentafter consultation with its financial advisors and outside legal counsel, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior such Takeover Proposal would continue to constitute a Superior Proposal or that such Intervening Event continues to warrant a Company Adverse Recommendation Change if the revisions proposed in such changes binding offer were to be given effect (it being understood and (Z) in the case of a Superior Proposal, prior agreed that any change to effecting such Change of Recommendation pricing or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any other material amendment or revision to the material terms of such Superior Takeover Proposal shall require a new notice or any material change to the facts and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect circumstances relating to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notifiedIntervening Event, in each case that was previously the subject of a notice hereunder (if applicable, after having been determined by the Board of Directors of the Company or any duly authorized committee thereof to no longer constitute a Superior Proposal) shall require the Company to deliver a new notice as provided above and provide a new notice period, except that such new notice and matching period in connection with any such amendment or revision shall be for three Business Days rather than five Business Days); provided, further that any purported termination of this Agreement pursuant to an Acceptable Confidentiality this sentence shall be void and of no force and effect unless the termination is in accordance with Section 7.01 and, to the extent required under the terms of this Agreement, the Company pays or causes to be paid to Parent the Company Termination Fee in accordance with Section 7.03 (to the extent due and payable thereunder) prior to or concurrently with such termination so long as Parent has timely provided the Company with wire instructions for such payment.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(he) Nothing in this Section 5.3 5.02 or elsewhere in this Agreement shall prohibit Company, the Company or the Board of Directors of the Company or any duly authorized committee thereof from (i) taking and disclosing to the stockholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, Act or (ii) complying making any disclosure to the stockholders of the Company that is required by applicable Law or if the Board of Directors of the Company or any duly authorized committee thereof determines in good faith, after consultation with its the Company’s outside legal counsel, that the failure of the Board of Directors of the Company or any duly authorized committee thereof to make such disclosure obligations would be inconsistent with the directors’ exercise of their duties to the Company’s stockholders under applicable Law; provided that no Company Adverse Recommendation Change shall be made except in compliance with Section 5.02(d).
(f) The Company hereby agrees that (i) any breach of, or failure to comply with, this Section 5.02 by any of its Subsidiaries or its or their respective directors, officers or employees and (ii) any actions taken by the Company’s or its Subsidiaries’ other Representatives that, notwithstanding the Company’s use of its reasonable best efforts in accordance herewith, would constitute a breach or violation of this Section 5.02 if taken by the Company or such Subsidiary, in the case of each of clauses (i) and (ii), shall be deemed a breach of Section 5.02 this Agreement by the Company.
(g) As used in this Agreement, “Acceptable Confidentiality Agreement” means (x) any confidentiality agreement entered into by the Company from and after the date of this Agreement that contains confidentiality provisions that are not materially less favorable in the aggregate to the Company than those contained in the Nondisclosure Agreement, except that such confidentiality agreement need not include explicit or implicit standstill provisions or otherwise restrict the making of or amendment or modification to Takeover Proposals on a confidential basis, but shall not contain any exclusivity provision or other term that would restrict, in any manner, Xxxxxx’s ability to consummate the transactions contemplated by this Agreement, or (y) any confidentiality agreement entered into prior to the date of this Agreement, it being understood that neither the Company shall be entitled to waive or release any “stop, look and listen” letter preexisting explicit or implicit standstill provisions or similar communication agreements with any Person or group of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information Persons to the Company Shareholders extent reasonably necessary to allow a third party to make a Takeover Proposal that is required to be made to such stockholders under applicable Law or in satisfaction does not result from a material violation of Section 5.02(a), if the Board of Directors of the Company Board’s has determined in good faith, after consultation with its outside legal counsel, that failure to so waive or release such standstill would be inconsistent with its fiduciary duties or under applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreement.
(i) For purposes of this Agreement:
Appears in 1 contract
Solicitation; Change in Recommendation. (a) Notwithstanding anything to the contrary set forth in this Agreement, during the period commencing with the execution of this Agreement and continuing until 11:59 p.m. (Eastern time) on the 30th day after the date of execution of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) shall have the right, directly or indirectly, (i) to initiate, solicit and/or encourage the submission of one or more Acquisition Proposals from one or more Persons, including by furnishing to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives), (ii) to continue, enter into, participate in and/or engage in any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) belowthis Section 5.02, the Company shall, shall and shall cause each of its Subsidiaries and its and their officers and directors to, and shall instruct and use commercially its reasonable best efforts to cause each of its other Representatives to, (i) beginning on the No-Shop Period Start Dateimmediately cease any solicitation, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) Persons with respect to a Takeover Proposal that would otherwise be prohibited by this Section 5.3(b) existed on or prior to the date hereof and (ii) from the No-Shop Period Start Date date hereof until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with its termsArticle VII, not, directly or indirectly, (A) not solicit initiate, solicit, or take other action to facilitate knowingly encourage (including by way of furnishing non-public information) the submission of any inquiries regarding, or the making of any proposal or offer that constitutes constitutes, or may would reasonably be expected to lead to an Acquisition to, a Takeover Proposal, (B) not engage in, continue or otherwise participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, regarding (except to notify such person as to the existence any Person of the provisions of this Section 5.35.02), and or furnish to any other Person any non-public information in connection with, or for the purpose of, encouraging a Takeover Proposal or (C) not enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e), at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership acquisition agreement or other similar agreement (an “Alternative Acquisition Agreement”) relating providing for a Takeover Proposal. The Company shall promptly request the return or destruction of all information furnished by or on its behalf to any Acquisition Person and its Representatives with respect to a Takeover Proposal on or prior to the date hereof. (other than any Acceptable Confidentiality Agreement).
(eb) Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary set forth in this Agreementcontrary, if at any time on or after the date hereof and prior to the receipt of obtaining the Company Shareholder Approval, the Company or any of its Representatives receives an oral or written Takeover Proposal, which Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company Board and its Representatives may make a Change contact and engage in discussions with such Person or group of Recommendation Persons making the Takeover Proposal or enter into an Alternative Acquisition Agreement, as applicable, its or their Representatives and financing sources to clarify the terms and conditions thereof or to request that any Takeover Proposal made orally be made in writing or to notify such Person or group of Persons or its or their Representatives and financing sources of the provisions of this Section 5.02 and (ii) if the Board of Directors of the Company Board with respect to an Acquisition Proposal has determined or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) any such Acquisition written Takeover Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would could reasonably be expected to affectresult in a Superior Proposal and the failure to take the following actions is reasonably likely to be inconsistent with the Board of Directors’ fiduciary duties under applicable Law, the business, assets, operations or results of operations of then the Company and any of its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or its Subsidiaries group of Persons making the Takeover Proposal and that has not occurred or is unknown furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known and its Subsidiaries to the Company Board, the Company Board may effect a Change Person or group of RecommendationPersons who has made such Takeover Proposal and its or their respective Representatives and financing sources; provided that the Company Board has determined shall promptly (and in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (Wany event within 24 hours) Company shall have provided prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid provide to Parent any Termination Fee payable with respect non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such termination in accordance with the terms hereof. Any material amendment access which was not previously provided to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, and (y) engage in connection or otherwise participate in discussions or negotiations with such notice, the identity of the Person or group of Persons making such offer Takeover Proposal and its or proposal, the material terms their Representatives and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality Agreement.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing in this Section 5.3 or elsewhere in this Agreement shall prohibit Company, Company Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying with its disclosure obligations under applicable Law, it being understood that neither any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreement.
(i) For purposes of this Agreement:financing sources. 33
Appears in 1 contract
Samples: Merger Agreement
Solicitation; Change in Recommendation. (a) Notwithstanding anything any other provision of this Agreement to the contrary set forth in this Agreementcontrary, during the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 p.m. (Eastern New York City time) on August 20, 2017 (the 30th day after “Go-Shop Period”), Company (acting under the date direction of execution the Special Committee), its Subsidiaries, their respective affiliates and their respective Representatives shall have the right to directly or indirectly: (i) initiate, solicit, facilitate and encourage Acquisition Proposals (or inquiries, proposals or offers or other efforts or attempts that may to lead to an Acquisition Proposal), including by way of providing access to non-public information pursuant to (but only pursuant to) an Acceptable Confidentiality Agreement with each recipient thereof and, in each case, subject to compliance with the other provisions of this Agreement Section 6.8; provided, that Company shall promptly (in any event, within one (1) business day) provide to Parent any non-public information concerning Company or its Subsidiaries that is provided to any person given such access which was not previously provided or made available to Parent or its Representatives, and Company shall withhold such portions of documents or information, or provide pursuant to customary “clean-room” or other appropriate procedures, to the extent relating to any commercially sensitive or relate to pricing or other matters that are highly sensitive or competitive in nature if the exchange of such information (or portions thereof) would reasonably be materially harmful to the operations of Company; (ii) enter into, engage in, and maintain discussions or negotiations with respect to Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations; and (iii) amend or grant a waiver or release under a standstill or similar agreement with respect to any Equity Interests of Company or any of its Subsidiaries solely to the extent necessary to permit the counterparty to such standstill or similar agreement to make a non-public Acquisition Proposal to the Company Board or the Special Committee during the Go-Shop Period.
(b) Company shall, and shall cause each of its Subsidiaries and their respective Representatives (i) beginning at 12:00 a.m. (on New York City time) on August 21, 2017 (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) shall have the right, directly or indirectly, (i) to initiateimmediately cease and terminate any solicitation, solicit and/or encourage the submission of one encouragement, discussions or more negotiations with any persons with respect to an Acquisition Proposals from one Proposal or more Persons, a potential Acquisition Proposal (including by furnishing to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representativesactivities permitted by Section 6.8(a)), (ii) terminate access to continueany physical or electronic data rooms related to a possible Acquisition Proposal (other than a data room utilized solely by Parent, enter into, participate in and/or engage in its affiliates and their respective Representatives and not any discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition Proposal, third person) and (iii) to the extent not otherwise prohibited request that any such person and its Representatives promptly return or destroy all confidential information concerning Company and its Subsidiaries theretofore furnished thereto by this Agreement, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals on behalf of Company or any other proposals that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, shall cause each of its Subsidiaries toSubsidiaries, and shall use commercially reasonable efforts to cause destroy all analyses and other materials prepared by or on behalf of such person that contain, reflect or analyze such information, in each case, in accordance with the applicable confidentiality agreement between Company or any of its Representatives toaffiliates, (i) beginning on one hand, and such person, on the No-Shop Period Start Date, cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) and (ii) from hand. From the No-Shop Period Start Date (and, solely with respect to a Holdover Proposal, the Delayed No-Shop Period Start Date) until the earlier of the Effective Time or or, if earlier, the termination of this Agreement in accordance with Article VIII, Company shall not, and shall cause each of its termsSubsidiaries and their respective Representatives not to, directly or indirectly, (A) not solicit solicit, initiate, knowingly facilitate or take other action to facilitate knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making or announcement of any proposal or offer that constitutes constitutes, or may would reasonably be expected to lead to to, an Acquisition Proposal, (B) not conduct or engage in, enter into, continue or otherwise participate in any way in any discussions or negotiations relating thereto with, or furnish any information or data to, any person that is seeking to make, has made or, to the knowledge of Company, is considering making an Acquisition Proposal or otherwise take such actions in furtherance thereof connection with or accept any for the purpose of knowingly encouraging or knowingly facilitating an Acquisition Proposal, except to notify such person as to the existence of the provisions of this Section 5.3, and (C) not approve, endorse or recommend any Acquisition Proposal or (D) enter into any letter of intent, agreement or agreement in principle Company Acquisition Agreement with respect to an Acquisition Proposal. Notwithstanding Proposal (including an Acceptable Confidentiality Agreement).
(c) Except as expressly permitted by Section 6.8(d), neither the foregoingCompany Board nor any committee thereof (including the Special Committee) shall (i) (A) fail to recommend to its stockholders that the Requisite Company Vote be given (the “Company Board Recommendation”), Company(B) change, its Subsidiaries qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify in a manner adverse to Parent, the Company Board Recommendation, (C) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (other than a temporary “stop, look and its Representatives may take and continue listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, or an express rejection of such tender offer or exchange offer or reaffirmation of the Company Board Recommendation), (D) fail to recommend against acceptance of any tender offer or exchange offer within ten (10) business days of the commencement of such offer, (E) adopt, approve, endorse or recommend, or publicly propose to approve or recommend to the stockholders of Company an Acquisition Proposal or (F) agree to take any of the foregoing actions (actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person that, prior to the No-Shop Period Start Date, has made a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may clause (i) furnish information (includingbeing referred to as a “Company Adverse Recommendation Change”), without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal.
(d) Except as provided by Section 5.3(e)authorize, at any time after the execution of this Agreement, the Company Board shall not (i) resolve to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to the Parent and/or Merger Sub (a “Change of Recommendation”), or (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement or agreement in principle, memorandum of understanding, or other similar agreement in principle, relating to or providing for any Acquisition Proposal or an acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar definitive agreement (an “Alternative Acquisition Agreement”) relating providing for or with respect to any Acquisition Proposal (other than each, a “Company Acquisition Agreement”), (iii) except as contemplated by Section 6.8(a), grant any Acceptable Confidentiality Agreementwaiver, amendment or release under any standstill or similar agreement with respect to any class of Equity Interests of the Company or any of its Subsidiaries, any confidentiality agreement or Takeover Statute or (iv) take any action pursuant to Section 8.1(e).
(ed) Notwithstanding anything to the contrary set forth in this Agreementherein, at any time prior to the receipt No-Shop Period Start Date (and, solely with respect to a Holdover Proposal, the Delayed No-Shop Period Start Date), but not after, the Company Board or the Special Committee may, in each case so long as the Company has complied in all material respects with the requirements of and not breached in any material respect this Section 6.8, (A) make a Company Adverse Recommendation Change in response to an Intervening Event or Superior Proposal and/or (B) terminate this Agreement pursuant to Section 8.1(e) to enter into a Company Acquisition Agreement with respect to a Superior Proposal, in each case, if and only if, prior to taking of the action in either clause (A) or (B), the Company Shareholder ApprovalBoard or a duly authorized committee thereof (including the Special Committee) concludes in good faith, after consultation with Special Committee Financial Advisor and outside legal counsel, (x) that failure to take such action would be reasonably expected to be inconsistent with the directors’ fiduciary duties under applicable Law and (y) that, if applicable, such Acquisition Proposal constitutes a Superior Proposal; provided, further, that, prior to taking the action in either clause (A) or (B) above, (i) the Company Board may make a Change of Recommendation or enter into an Alternative Acquisition Agreement, as applicable, if and the Company Board with respect to an Acquisition Proposal Special Committee has determined in good faith, after consultation with its financial advisors and outside legal counsel, that given Parent at least five (A5) there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law and (B) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that (W) Company shall have provided business days’ prior written notice to Parent at least three (3) days in advance (such period, the “Notice Period” and any such notice with respect to a Superior Proposal, the “Initial Superior Proposal Notice”) of its intention to take such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) andwhich notice shall include, if related to as applicable, a Superior Proposal, the material terms and conditions of any such Superior Proposal (including the identity reasonably detailed written summary of the person making Intervening Event or unredacted copies of the Superior Proposal and any material transaction agreements and financing commitments (provided that such financing commitments may include customary redactions) and a written summary of the ultimate beneficial owner or owners and controlling persons thereofmaterial terms of any Superior Proposal not made in writing, to the extent such information is reasonably available to Companyincluding any financing commitments relating thereto), (Xii) in the case of a Superior Proposal, prior to effecting after providing such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreementnotice, Company shallshall have negotiated, and shall cause have caused its Representatives toto negotiate, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) during the Notice Period to enable Parent to propose make such adjustments in writing a binding offer to effect revisions to the terms and conditions of this Agreement, Agreement and the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate permit the need for a Change Company Board or the Special Committee not to take such action, and (iii) following the end of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior ProposalNotice Period, the Company Board or a duly authorized committee thereof (including the Special Committee, if such committee still exists), shall have considered in good faith any changes proposed revisions to this Agreement, Agreement and the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered proposed in writing by Parent Parent, and shall have determined determined, after consultation with outside legal counsel and the Special Committee Financial Advisor, that failure to take such actions continues to be reasonably expected to be inconsistent with the Superior Proposal would continue to constitute a Superior Proposal directors’ fiduciary duties under applicable Law even if such changes proposed revisions by the Parent to this Agreement and the Financing were to be given effect effect, and (Ziv) in the case event of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment change to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required (or amendment thereof) occurring prior to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date Company shall, in each case, have delivered to Parent an additional notice (each such notice, a “Superior Proposal Change Notice”) consistent with that described in clause (i) above and the Notice Period in clause (i) shall have recommenced and the condition in clauses (ii) and (iii) shall have occurred again, except that the Notice Period shall be at least two (2) business days (rather than the five (5) business days otherwise contemplated by clause (i) above). In the event that the No-Shop Period Start Date is scheduled to begin within (a) five (5) business days of delivery of an Initial Superior Proposal Notice or (b) two (2) business days of delivery of a Superior Proposal Change Notice (such applicable notice period, the “Holdover Notice Period”), the No-Shop Period Start Date solely with respect to the Acquisition Proposal that is the subject of the Holdover Notice Period (the “Holdover Proposal”) will be extended until 5:00 p.m., Eastern time, on the business day immediately following the final day of such Holdover Notice Period (the “Delayed No-Shop Period Start Date”).
(e) From and after the date hereof, Company agrees that it will shall notify Parent as promptly as reasonably practicable (and, but in any event, event within fortytwenty-eight four (4824) hours) notify in the Parent if any non-public information is requested fromevent that (i) Company, its Subsidiaries, affiliates or any of their respective Representatives receives (A) an Acquisition Proposal or any amendment thereto or (B) any request for discussions or negotiations are sought negotiations, any request for access to be initiated the properties or continued with, books and records of Company or any of its Subsidiaries of which Company or any of its Subsidiaries or any of their respective Representatives indicatingis or has become aware, or any request for information relating to Company or any of its Subsidiaries, in connection with each case, by any person that could reasonably be expected to be considering making an Acquisition Proposal or (ii) Company enters into any Acceptable Confidentiality Agreement (which notice shall include a copy of such notice, Acceptable Confidentiality Agreement). Such notice to Parent shall indicate the identity of the person or group of Persons persons making such Acquisition Proposal or amendment thereto and the status provide (x) an unredacted copy of any such discussions written Acquisition Proposal or negotiations, including any change in Company’s intentions as previously notifiedamendment thereto (including, in each case pursuant to an Acceptable Confidentiality Agreement.
case, financing commitments with customary redaction) and any material transaction documents, and (gy) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving or amendment thereto not made in writing, a written summary of the material terms and conditions of each such Acquisition Proposal or amendment thereto. Company shall keep Parent informed, on a reasonably current basis (and, in any event within twenty-four (24) hours of Company’s knowledge of any such event) of any material developments, discussions or negotiations regarding any Acquisition Proposals, or material changes to the terms of any such Acquisition Proposal or any amendment thereto (including copies of any written proposed agreements). Company hereby agrees that it shall not, and shall not permit its Subsidiaries to, enter into any Contract that prohibits or restricts it from providing to Parent the information contemplated by this Section 6.8(e) or from complying with the other provisions of this Section 6.8.
(hf) Nothing in this Section 5.3 or elsewhere contained in this Agreement shall prohibit Company, prevent Company or Company Board or any committee thereof the Special Committee from (i) taking complying with Rules 14a-9, 14d-9 and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or 14e-2 under the Exchange Act and Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) complying Act with its disclosure obligations under applicable Law, it being understood that neither any respect to an Acquisition Proposal or from issuing a “stop, look and listen” letter statement pending disclosure of its position thereunder or similar communication making any required disclosure to Company’s stockholders if, in the good faith judgment of the type contemplated by Rule 14d-9(f) under Company Board or the Exchange ActSpecial Committee, nor any accurate disclosure of factual information after consultation with its outside legal counsel, the failure to the Company Shareholders that is required do so would be inconsistent with its fiduciary duties to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or such disclosure is otherwise required under applicable Law. For the avoidance of doubt, complying with such obligations or making such disclosure shall be deemed not in any way limit or modify the effect that any such action has under this Agreement (including whether such action constitutes a modification of the Company Board’s approval or recommendation of the Merger and this AgreementAdverse Recommendation Change).
(i) For purposes of this Agreement:
Appears in 1 contract
Solicitation; Change in Recommendation. (a) Notwithstanding anything to the contrary set forth in this Agreement, during During the period commencing with beginning on the execution date of this Agreement and continuing until 11:59 p.m. 12:01 a.m. (Eastern Chicago time) on the 30th 51st day after following the date of execution of this Agreement (the “No-Shop Period Start Date”), the Company Seller and its Subsidiaries subsidiaries and their respective Affiliates, officers, directors, agents employees, agents, advisors and other representatives (such Persons, together with the subsidiaries of Seller, collectively, the “Seller Representatives”) shall have the right, directly or indirectly, right to: (i) to initiate, solicit and/or solicit, facilitate and encourage the submission of one or more Acquisition Proposals from one or more PersonsTakeover Proposals, including by furnishing way of providing access to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating to the Company and/or its Subsidiaries or by affording to any other Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records or other non-public information, or to the personnel, group of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement Persons and provided that the Company shall promptly make available to the Parent any material non-public information concerning the Company and/or its Subsidiaries that is provided to any Person given such access which was not previously made available to the Parent or its officers, directors or Representatives), (ii) to continue, enter into, participate in and/or engage in any into and maintain or continue discussions or negotiations with one or more Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Takeover Proposals or any other proposals that could lead to an Acquisition Proposal, and (iii) to the extent not otherwise prohibited by this Agreement, to otherwise cooperate with, with or assist or take any action to participate in, or facilitate any Acquisition Proposals inquiries, proposals, discussions or any other proposals that could lead to any Acquisition Proposalsnegotiations regarding a Takeover Proposal.
(b) Except as permitted by Sections 5.3(c) this Section 5.3 Seller and (e) below, the Company its subsidiaries and their respective directors and officers shall, shall cause each of its Subsidiaries to, and Seller shall use its commercially reasonable efforts to cause each of its Representatives tothe other Seller Representatives, to (i) beginning on the No-Shop Period Start Date, immediately cease and cause to be terminated any discussions or negotiations with any Person (other than Excluded Parties, as defined below) Persons that would otherwise may be prohibited by this Section 5.3(b) ongoing with respect to a Takeover Proposal; and (ii) from the No-Shop Period Start Date until the earlier of Closing Date or, if earlier, the Effective Time or termination of this Agreement in accordance with its termsArticle IX, not (A) not solicit solicit, initiate or take knowingly facilitate or encourage (including by way of furnishing non-public information other action to facilitate than in the ordinary course of business) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to result in, a Takeover Proposal or (B) engage in, continue or otherwise participate in any discussions or negotiations regarding a Takeover Proposal.
(c) Notwithstanding anything to the contrary contained in Section 5.3(b), if, at any time on or after the No-Shop Period Start Date and prior to obtaining the Seller Stockholder Approval, Seller or any of the Seller Representatives receives a written Takeover Proposal by any Person or group of Persons, which Takeover Proposal was made on or after the No-Shop Period Start Date, (i) Seller and the Seller Representatives may contact such Person or group of Persons to clarify the terms and conditions thereof and (ii) if the Board or any committee thereof determines in good faith (A) after consultation with its investment bankers, that such Takeover Proposal constitutes or may could reasonably be expected to lead to an Acquisition Proposal, a Superior Proposal and (B) not participate in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposalafter consultation with outside legal counsel, except that failure to notify take such person as to action could be inconsistent with its fiduciary duties under applicable law, Seller and the existence of the provisions of this Section 5.3, and Seller Representatives may (Cx) not enter into any letter of intent, agreement or agreement in principle furnish information (including non-public information) with respect to an Acquisition Seller and its subsidiaries to the Person or group of Persons who has made such Takeover Proposal and (y) engage in or otherwise participate in discussions and negotiations regarding such Takeover Proposal. Notwithstanding the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from From and after the No-Shop Period Start Date, Seller shall promptly advise Purchaser of the receipt by Seller of any Takeover Proposal made on or after the No-Shop Period Start Date or any request for non-public information made by any Person or group of Persons that has informed Seller it is considering making a Takeover Proposal or any request for discussions or negotiations with respect Seller or the Seller Representatives relating to a Takeover Proposal, and Seller shall provide to Purchaser, at Seller’s option, either (i) a copy of any Solicited such Takeover Proposal made in writing provided to Seller or any of its subsidiaries (which, at the option of Seller, may be redacted to remove the identity of the Person that, prior or group of Persons making the Takeover Proposal) or (ii) a written summary of the material terms of such Takeover Proposal (it being understood that such material terms do not have to include the identity of the Person or group of Persons making the Takeover Proposal). Following the No-Shop Period Start Date, has made Seller shall keep Purchaser informed on a bona fide Acquisition Proposal that the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Proposal (each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(b) prompt basis of any material change to the contrary, terms and conditions of any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Acquisition Proposal made by such party is withdrawn, is terminated or expires, or the Company Board and the Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) that such Acquisition Proposal ceases to constitute, or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent with respect to any Acquisition Proposal.
(c) Notwithstanding Section 5.3(b), the Company Board and the Independent Committee, in the exercise of their fiduciary duties, as determined in good faith by the Company Board and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal that the Company Board and Independent Committee determine in good faith (after consultation with Company's outside financial and legal advisors) constitutes or would reasonably be expected to result in a Superior Takeover Proposal.
(d) Except as provided by set forth in this Section 5.3(e)5.3, at neither the Board nor any time after the execution of this Agreement, the Company Board committee thereof shall not (i) resolve withdraw or modify, or propose publicly to withdraw, withdraw or modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse to Purchaser, the Parent and/or Merger Sub (a “Change of Seller Recommendation”), or ; (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal (any of the actions referred to in the foregoing clauses (i) and (ii), whether taken by the Board or a committee thereof, an “Adverse Recommendation Change”); or (iii) cause or permit the Company allow Seller or any of its Subsidiaries subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other any similar agreement (an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal or understanding (other than any Acceptable Confidentiality Agreement)a confidentiality agreement) to implement a Takeover Proposal.
(ei) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the receipt Seller Stockholder Approval, if Seller has received a Takeover Proposal that has not been withdrawn or abandoned and that the Board or any committee thereof concludes in good faith constitutes a Superior Proposal after giving effect to all of the Company Shareholder Approvaladjustments which may be offered by Purchaser pursuant to clause (2) below, if applicable, the Board or any committee thereof may (ix) the Company Board may make a an Adverse Recommendation Change of Recommendation or and/or (y) terminate this Agreement to enter into an Alternative Acquisition Agreement, as applicable, if the Company Board a definitive agreement with respect to an Acquisition such Superior Proposal has determined if the Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that the failure to do so would cause the Company Board to violate be inconsistent with its fiduciary duties under applicable law; provided, however, if the Adverse Recommendation Change pursuant to the Company Shareholders under applicable Law and foregoing clause (Bx) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date and/or termination of this Agreement (an “Intervening Event”) occurs or becomes known pursuant to the Company Boardforegoing clause (y) is to be effected, in either case, as the Company result of receipt by Seller of a Superior Proposal, then the Board or a committee thereof may not effect a an Adverse Recommendation Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that the failure to do so would cause the Company Board to violate its fiduciary duties pursuant to the Company Shareholders under applicable Law, provided that foregoing clause (Wx) Company and/or terminate this Agreement pursuant to the foregoing clause (y) unless:
(1) Seller shall have provided prior written notice to Parent Purchaser, at least three (3) five calendar days in advance (the “Notice Period”) ), of its intention to take effect an Adverse Recommendation Change in response to such action and provided the reasons for the Change of Recommendation described in either (i) or (ii) and, if related Superior Proposal and/or to terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, which notice shall specify the material terms and conditions of any such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, to the extent it being understood that such information is reasonably available to Company), (X) in the case of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the material terms and conditions of this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as would alleviate the need for a Change of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposal, the Company Board shall do not have considered in good faith any changes to this Agreement, the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered in writing by Parent and shall have determined that the Superior Proposal would continue to constitute a Superior Proposal if such changes were to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance with the terms hereof. Any material amendment to the material terms of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z).
(f) Company agrees that it will keep the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, include the identity of the Person or group of Persons making the Superior Proposal), and contemporaneously with providing such offer notice shall have provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents (provided that such copies of such agreements and other material documents, may exclude the identity of the Person or proposalgroup of Persons making the Superior Proposal); and
(2) prior to effecting such Adverse Recommendation Change in response to a Superior Proposal and/or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, Seller shall, and shall cause its legal and financial advisors to, during the material Notice Period, negotiate with Purchaser in good faith (to the extent Purchaser desires to negotiate) to make such adjustments to the terms and conditions of this Agreement that are proposed by Purchaser so that such Takeover Proposal ceases to constitute a Superior Proposal. In the event that during the Notice Period any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreementsrevisions are made to the Superior Proposal to which the proviso in this Section 5.3(e)(i) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) applies and the status of Board or any committee thereof in its good faith judgment determines such discussions or negotiations, including revisions are material (it being agreed that any change in Company’s intentions as previously notified the purchase price in such Superior Proposal shall be deemed a material revision), Seller shall be required to deliver a new written notice to Purchaser and to comply with the requirements of this Section 5.3(e)(i) with respect to such new written notice, except that the Notice Period shall be reduced to two calendar days.
(ii) following In addition to the No-Shop Period Start Daterights of the Board and any committee thereof under clause (i) of this Section 5.3(e) and notwithstanding anything to the contrary in this Agreement, Company agrees that it will promptly (andat any time prior to obtaining the Seller Stockholder Approval, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, Board or any discussions committee thereof may, other than in response to any Takeover Proposal, (x) make an Adverse Recommendation Change and/or (y) terminate this Agreement if the Board or negotiations are sought any committee thereof determines in good faith, after consultation with outside counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable law; provided that prior to taking either of the actions set forth in the foregoing clause (x) or clause (y), Seller shall take the actions set forth in clauses (1) and (2) of Section 5.3(e)(i) above as if a Superior Proposal that is not an Excluded Superior Proposal had been received by Seller. No Adverse Recommendation Change shall change the approval of the Board for purposes of causing any state takeover statute or other state law to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, inapplicable to the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality AgreementContemplated Transactions.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(hf) Nothing in this Section 5.3 or elsewhere contained in this Agreement shall prohibit Company, Company Seller or the Board or any committee thereof from (i) taking and disclosing to Company Shareholders a position contemplated by Rule 14e-2(a)complying with Rules 14a-9, Rule 14d-9 or Item 1012(a) of Regulation M-A 14e-2 promulgated under the Exchange ActAct of 1934, (ii) complying as amended, or from making any disclosure to the Seller’s stockholders if, in the good faith judgment of the Board or any committee thereof, after consultation with outside counsel, the failure to do so would be inconsistent with its disclosure obligations fiduciary duties under applicable Law, it being understood that neither any “stop, look and listen” letter law or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is otherwise required to be made to such stockholders under applicable Law or in satisfaction of the Company Board’s fiduciary duties or applicable Law, shall be deemed a modification of the Company Board’s approval or recommendation of the Merger and this Agreementlaw.
(i) For purposes of this Agreement:
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Solicitation; Change in Recommendation. (a) Except as permitted by this Section 4.3, the Company shall and shall cause each of the Company Subsidiaries and the Company Representatives to (i) immediately cease and cause to be terminated any and all solicitations or encouragement of Takeover Proposals from, and discussions or negotiations with respect to Takeover Proposals with, any Persons conducted prior to the execution of this Agreement by the Company, the Company Subsidiaries or any of the Company Representatives, and (ii) promptly request any such Person to promptly return or destroy all confidential information concerning the Company and the Company’s Subsidiaries. Except as permitted by this Section 4.3, from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall cause each of the Company Subsidiaries not to, and the Company shall not give permission to or authorize any Company Representatives to, and the Company shall use its reasonable best efforts to cause the Company Representatives not to, directly or indirectly, (A) solicit, initiate, or knowingly facilitate, cooperate with or knowingly encourage (including by way of furnishing non-public information or data or affording access to the books, records or employees of the Company) any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other party information or data in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal, (C) enter into any letter of intent, agreement, contract or agreement in principle with respect to a Takeover Proposal, (D) enter into any agreement, contract or agreement in principle requiring the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger, (E) take any action to make the provisions of any Takeover Laws inapplicable to any transactions contemplated by a Takeover Proposal, (F) terminate, amend, release, modify or fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the Company in respect of or in contemplation of a Takeover Proposal, or (G) publicly propose to do any of the foregoing ..
(b) Notwithstanding anything to the contrary set forth contained in this AgreementSection 4.3(a), during the period commencing with the execution of this Agreement and continuing until 11:59 p.m. (Eastern time) if at any time on the 30th day or after the date of execution of this Agreement (the “No-Shop Period Start Date”), hereof and prior to obtaining the Company and its Subsidiaries and their respective Affiliates, officers, directors, agents and representatives (“Representatives”) shall have the right, directly or indirectlyRequisite Vote, (i) to initiate, solicit and/or encourage the submission Company or any of one the Company Representatives is in receipt of a bona fide written Takeover Proposal from any Person or more Acquisition Proposals from one or more group of Persons, which Takeover Proposal is made or renewed on or after the date hereof, and has not been subsequently withdrawn, (ii) the Company has not breached in any material respect Section 4.3(a), (iii) the Company Board (or any committee thereof) determines in good faith, after consultation with a financial advisor of nationally recognized reputation, such as the Company Financial Advisor, that such Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, then the Company and the Company Representatives may (x) furnish, pursuant to a Qualifying Confidentiality Agreement, information (including by furnishing to any Person and/or its Affiliates, officers, directors, agents or Representatives any non-public information relating and by affording access to the books, records and employees of the Company) with respect to the Company and/or its and the Company Subsidiaries or by affording to any Person and/or its Affiliates, officers, directors, agents or Representatives access to the business, properties, assets, books, records Person or other non-public information, or to the personnel, group of the Company and/or its Subsidiaries (each, a “Solicited Person”) (all pursuant to an Acceptable Confidentiality Agreement and Persons that has made such Takeover Proposal; provided that the Company shall as promptly make available as is reasonably practicable provide to the Parent any material non-public nonpublic information concerning the Company and/or its or the Company Subsidiaries that is provided to any Person given such access which was not previously made available provided to the Parent or its officers, directors the Parent Representatives; and (y) engage in or Representatives), (ii) to continue, enter into, otherwise participate in and/or engage in any discussions or negotiations with one the Person or more group of Persons and/or their Affiliates, officers, directors, agents or Representatives with respect to one or more Acquisition Proposals or any other proposals that could lead to an Acquisition making such Takeover Proposal, and (iii) including granting written consent of the Company Board to the extent not otherwise prohibited by this Agreementsubmission of amendments to such Takeover Proposal; provided, to otherwise cooperate with, assist or take any action to facilitate any Acquisition Proposals or any other proposals further that could lead to any Acquisition Proposals.
(b) Except as permitted by Sections 5.3(c) and (e) below, the Company shall, shall cause each of its Subsidiaries to, and shall use commercially reasonable efforts promptly provide to cause each of its Representatives to, Parent (i) beginning on a copy of any Takeover Proposal made in writing to the No-Shop Period Start Date, cease and cause to be terminated Company or any discussions or negotiations with any Person (other than Excluded Parties, as defined below) that would otherwise be prohibited by this Section 5.3(b) Company Subsidiary and (ii) from the No-Shop Period Start Date until the earlier a written summary of the Effective Time material terms of any Takeover Proposal not made in writing. Notwithstanding any provision to the contrary in this Agreement, the Parent agrees that the name and identity of the Person or termination group of this Agreement Persons that have made a Takeover Proposal or a Superior Proposal shall be kept confidential by the Parent and the Parent Representatives and shall be subject to the Confidentiality Agreement.
(c) Following the date hereof, the Company shall keep the Parent reasonably informed of any material developments, discussions or negotiations regarding any Takeover Proposal (whether made before or after the date hereof). The Company agrees that neither it nor any of the Company Subsidiaries will enter into any agreement with any Person subsequent to the date hereof which prohibits the Company from providing any information to the Parent in accordance with its termsthis Section 4.3.
(d) Except as expressly permitted by this Section 4.3(d) or Section 4.3(e), the Company Board shall not (Ai)(A) not solicit or take other action fail to facilitate any inquiries or include the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition ProposalRecommendation in the Proxy Statement, (B) not participate change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify, in any way in any discussions or negotiations relating thereto or in furtherance thereof or accept any Acquisition Proposal, except to notify such person as a manner adverse to the existence of Parent, the provisions of this Section 5.3Recommendation, and (C) not take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act, (D) adopt, approve or recommend, or publicly propose to approve or recommend to the shareholders of the Company a Takeover Proposal or (E) enter into any contract or agreement in principle requiring the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the Merger (actions prohibited by this clause (i) being referred to as a (“Change of Recommendation”)); (ii) authorize, cause or permit the Company or any of the Company Subsidiaries to enter into any letter of intent, agreement or agreement in principle with respect to any Takeover Proposal (other than a Qualifying Confidentiality Agreement) (each, an “Acquisition ProposalAgreement”) or (iii) take any action pursuant to Section 8.1(e). Notwithstanding anything to the foregoing, Company, its Subsidiaries and its Representatives may take and continue to take any of the actions described in Section 5.3(a) from and after the No-Shop Period Start Date with respect to any Solicited Person thatcontrary herein, prior to the No-Shop Period Start Datetime the Company Requisite Vote is obtained, has made but not after, if the Company is in receipt of a bona fide Acquisition written Takeover Proposal that the Company Board and the Independent Committee determine (or any committee thereof) determines in good faith (faith, after consultation with Company's outside a financial and legal advisors) advisor of nationally recognized reputation, such as the Company Financial Advisor, constitutes or would reasonably be expected to result in a Superior Proposal Proposal, after (in each such Solicited Person, an “Excluded Party”). Notwithstanding anything contained in this Section 5.3(bcase) giving effect to all of the adjustments to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under terms of this Agreement immediately at such time as which may be offered by the Acquisition Proposal made by such party is withdrawnParent (including pursuant to clause (iii) below), is terminated or expires, or then the Company Board and the Independent Committee determine in good faith may (after consultation with Company's outside financial and legal advisorsx) that such Acquisition Proposal ceases to constitute, make a Change of Recommendation or ceases to be reasonably likely to lead to, a Superior Proposal. Company hereby represents that as of the date of (y) terminate this Agreement neither it nor any of its Subsidiaries is engaged in discussions or negotiations with any Person other than Parent and enter into an Acquisition Agreement with respect to any Acquisition such Superior Proposal.
, provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (c) Notwithstanding Section 5.3(by), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company Board pays the Termination Fee and otherwise complies with the Independent Committee, in the exercise provisions of their fiduciary duties, as determined in good faith by the Company Board Section 8.1(e) and Independent Committee, may (i) furnish information (including, without limitation, confidential information) concerning Company to a third Person who makes an unsolicited request for such information for the purpose of making an Acquisition Proposal, Section 8.3; and (ii) engage in discussions or negotiations with a third Person who submits in writing an interest in making an Acquisition Proposal provided further that the Company Board may not take the action set forth in the foregoing clause (x) or (y), as the case may be, unless (A) the Company shall not have breached in any material respect this Section 4.3 and Independent Committee determine (B):
(i) such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal;
(ii) the Company has given the Parent at least five (5) Business Days’ prior written notice of its intention to take such action (which notice shall specify the material terms and conditions of any such Superior Proposal) and has contemporaneously provided a copy of each of the relevant proposed transaction agreements to be entered into by the Company with the party making such Superior Proposal;
(iii) prior to effecting such Change of Recommendation or terminating this Agreement to enter into an Acquisition Agreement with respect to such Superior Proposal, the Company has negotiated, and has caused the Company Representatives to negotiate, in good faith (after consultation with Company's outside financial and legal advisors) constitutes or the Parent during such notice period to the extent the Parent wishes to negotiate, to enable the Parent to revise the terms of this Agreement and/or the Financing Letters such that it would reasonably be expected cause such Superior Proposal to result in no longer constitute a Superior Proposal.;
(div) Except as provided by Section 5.3(e), at in the event of any time after material change to the execution terms of this Agreementsuch Superior Proposal, the Company Board shall not (i) resolve shall, in each case, be required to withdraw, modify or qualify and/or withdraw, modify or qualify the Company Recommendation in a manner adverse deliver to the Parent and/or Merger Sub a new written notice (which notice shall specify the change in the material terms and conditions of any such Superior Proposal) and contemporaneously provide a “Change copy of Recommendation”), or (ii) cause or permit each of the relevant proposed transaction agreements to be entered into by the Company with the party making such Superior Proposal, the notice period shall have recommenced (except that it shall be two (2) Business Days rather than five (5) Business Days) and the Company shall be required to comply with its obligations under this Section 4.3 with respect to such new written notice; and
(v) For the avoidance of doubt, nothing in this Section 4.3(d) shall prevent or preclude the Parent from proposing to revise the terms of this Agreement or taking any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement (an “Alternative Acquisition Agreement”) actions relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement)thereto.
(e) Notwithstanding anything to the contrary set forth in this Agreementherein, at any time prior to the receipt of time the Company Shareholder ApprovalRequisite Vote is obtained, (i) but not after, the Company Board may make withdraw or modify, in a Change manner adverse to Parent or Merger Sub, or fail to make, the recommendation of the Company Board in favor of the adoption and approval of this Agreement and the approval of the Merger in response to an Intervening Event (an “Intervening Recommendation or enter into an Alternative Acquisition Agreement, as applicableChange”), if the Company Board with respect to an Acquisition Proposal has determined determines in good faith, after consultation with its financial advisors and outside legal counsel, that (A) there is a reasonable probability that that, in light of such Intervening Event, the failure to do so would cause of the Company Board to violate its effect such an Intervening Recommendation Change would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company Shareholders under applicable Law and Law; provided, that (Bx) such Acquisition Proposal constitutes a Superior Proposal or (ii) if an event, fact, circumstance, development or occurrence that affects, or would reasonably be expected to affect, the business, assets, operations or results of operations of the Company or its Subsidiaries and that has not occurred or is unknown to the Company Board as of the date of this Agreement (an “Intervening Event”) occurs or becomes known to the Company Board, the Company Board may effect a Change of Recommendation; provided that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that there is a reasonable probability that given the failure to do so would cause the Company Board to violate its fiduciary duties to the Company Shareholders under applicable Law, provided that Parent at least five (W5) Company shall have provided Business Days’ prior written notice to Parent at least three (3) days in advance (the “Notice Period”) of its intention to take such action action, (y) the Company has negotiated, and provided has caused the reasons for Company Representatives to negotiate, in good faith with the Change of Recommendation described in either (i) or (ii) and, if related to a Superior Proposal, the material terms and conditions of any Parent during such Superior Proposal (including the identity of the person making the Superior Proposal and the ultimate beneficial owner or owners and controlling persons thereof, notice period to the extent such information is reasonably available the Parent wishes to Company)negotiate, (X) in to enable the case Parent to revise the terms of a Superior Proposal, prior to effecting such Change of Recommendation, or, approving or recommending such Superior Proposal or terminating this Agreement to enter into an Alternative Acquisition Agreement, Company shall, and shall cause its Representatives to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to the extent that Parent desires to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms and conditions of this Agreement, or the Financing Letter, the Related Person Investment Commitment, the Letter Amendment and the Licensor Warrant Amendment, as Letters in such a manner that would alleviate obviate the need for a Change taking such action and (z) following the end of Recommendation, or such approval, recommendation or termination, (Y) in the case of a Superior Proposalnotice period, the Company Board shall have considered in good faith any changes to this Agreement, Agreement and the Financing Letter, the Related Person Investment Commitment, the Letter Amendment or the Licensor Warrant Amendment offered Letters proposed in writing by Parent the Parent, and shall have determined in good faith, after consultation with outside counsel, that the Superior Proposal failure to effect an Intervening Recommendation Change would continue to constitute a Superior Proposal if such changes were be reasonably likely to be given effect and (Z) in the case of a Superior Proposal, prior to effecting such Change of Recommendation or entering into an Alternative Acquisition Agreement, Company shall have terminated this Agreement and paid to Parent any Termination Fee payable with respect to such termination in accordance inconsistent with the terms hereof. Any material amendment to the material terms directors’ exercise of such Superior Proposal shall require a new notice and Notice Period, and Company shall be required to comply again with the requirements of these subclauses (W) through (Z)their fiduciary duties under applicable Law.
(f) In the event that, subsequent to the date hereof and prior to the Shareholders’ Meeting, there shall have been a Change of Recommendation or an Intervening Recommendation Change and this Agreement has not been terminated, the Company agrees that it will keep shall nevertheless submit this Agreement to the Parent reasonably informed regarding the matters contemplated by this Section 5.3 (including any Acquisition Proposals). Without limiting the generality shareholders of the foregoing, (i) Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by Company or its Representatives indicating, in connection with such notice, for adoption and approval at the identity of the Person or group of Persons making such offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent reasonably informed, on a prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified and (ii) following the No-Shop Period Start Date, Company agrees that it will promptly (and, in any event, within forty-eight (48) hours) notify the Parent if any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Company or any of its Representatives indicating, in connection with such notice, the identity of the person or group of Persons and the status of any such discussions or negotiations, including any change in Company’s intentions as previously notified, in each case pursuant to an Acceptable Confidentiality AgreementShareholders’ Meeting.
(g) Other than with respect to the Financing Letter, the Letter Amendment, the Licensor Warrant Amendment or the Related Person Investment Commitment or as contemplated by this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, shall make or enter into any formal or informal arrangements or understandings (whether or not binding) with any Person, or have any discussions or other communications with any other person, in any such case with respect to any Acquisition Proposal involving Company.
(h) Nothing in this Section 5.3 or elsewhere in this Agreement 4.3 shall prohibit Company, the Company or the Company Board (or any committee thereof thereof) from (i) taking and disclosing to the shareholders of the Company Shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, if failure to do so would violate applicable Law, or (ii) complying with its making any disclosure obligations under applicable Law, it being understood that neither any “stop, look and listen” letter or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, nor any accurate disclosure of factual information to the Company Shareholders that is required to be made to such stockholders under applicable Law or Company’s shareholders if, in satisfaction the case of this clause (ii), in the good faith judgment of the Company Board’s , after consultation with outside counsel, the failure to do so would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties or under applicable Law; provided that the Company Board shall not recommend that the Company shareholders tender their shares of Company Common Stock in connection with a tender or exchange offer (or otherwise approve or recommend any Takeover Proposal) unless such tender or exchange offer constitutes a Superior Proposal and the applicable requirements of this Section 4.3 shall have been satisfied.
(h) The parties hereto agree that irreparable damage would occur to Parent in the event that the provisions of this Section 4.3 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this Section 4.3 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which Parent may be entitled at law or in equity. Without limiting the foregoing, it is understood that any violation of the restrictions set forth above by any officer, director, agent, representative or affiliate of the Company shall be deemed to be a modification of the Company Board’s approval or recommendation of the Merger and this Agreement.
(i) For purposes breach of this Agreement:Agreement by the Company.
Appears in 1 contract
