Solicitation; Change in Recommendation. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. (New York City time) on the 51st day following the date of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, agents, advisors and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit, facilitate and encourage Takeover Proposals, including by way of providing access to non-public information to any other Person or group of Persons pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available to any Person given such access which was not previously made available to Parent and Merger Sub; and (ii) enter into and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any inquiries, proposals, discussions or negotiations regarding a Takeover Proposal. For purposes of this Agreement, “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal). From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, on or after the date of this Agreement and the provision thereof requiring the other party thereto to keep confidential any proprietary, confidential information about the Company obtained by such Person pursuant to such confidentiality agreement (it being understood that the Company may provide any consent and grant any approval contemplated by any such confidentiality agreement).
Appears in 2 contracts
Samples: Merger Agreement (Djo Inc), Merger Agreement (ReAble Therapeutics Finance LLC)
Solicitation; Change in Recommendation. (a) During Notwithstanding anything to the contrary set forth in this Agreement, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. 11:59 p.m. (New York City time) on the 51st day that is fifty-five (55) days following the date of this Agreement (the “No-Shop "Solicitation Period Start End Date”"), the Company, the Company and its Subsidiaries and their respective officers, directors, employees, agents, advisors and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) Representatives shall have the right (acting under the direction of the Special Committee) to, directly or indirectly: (i) solicit, initiate, solicit, facilitate and encourage Takeover Proposalsany Acquisition Proposal from any Third Party, including by way of providing access to non-public information to any other Person or group of Persons pursuant to an one or more Acceptable Confidentiality Agreement; Agreements, provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its the Company Subsidiaries that is made available provided to any Person Third Party given such access which was shall, to the extent not previously made available provided to Parent and or Merger Sub, be provided to Parent as promptly as reasonably practicable after it is provided to such Third Party; and (ii) enter into and maintain into, continue or continue otherwise participate in any discussions or negotiations with respect to Takeover Proposals any Acquisition Proposal or otherwise cooperate with or assist or participate in, in or facilitate any inquiries, proposals, such discussions or negotiations regarding a Takeover or any effort or attempt to make any Acquisition Proposal. For purposes Notwithstanding the foregoing, the Company shall not provide any commercially sensitive non-public information to any competitor in connection with the actions contemplated by this Section 6.4(a), except in a manner consistent with the Company's past practice in dealing with the disclosure of this Agreement, “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable such information in the aggregate context of considering Acquisition Proposals prior to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal). From the date of this Agreement Agreement.
(b) Except as expressly permitted by this Section 6.4, the Company and its officers and directors shall, and the Company shall instruct the Company Subsidiaries and Company Representatives to, immediately after the Solicitation Period End Date (or, as may relate to any Continuing Party, immediately after the Cut-Off Date):
(i) cease all discussions and negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to any Acquisition Proposal, and the notice shall also request such Person to promptly return or destroy all confidential information concerning the Company and the Company Subsidiaries; and
(ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, not:
(A) initiate, solicit, propose, knowingly encourage (including by providing non-public information) or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal;
(B) engage in, continue or otherwise participate in any discussions or negotiations regarding, or provide any non-public information or data concerning the Company or any Company Subsidiary to any Person relating to, any Acquisition Proposal, or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal;
(C) grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes;
(D) approve, endorse, recommend, execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement (other than an Acceptable Confidentiality Agreement) relating to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or that requires the Company to abandon this Agreement or the Merger; or
(E) resolve, agree or publicly announce an intention to do any of the foregoing. For the avoidance of doubt, after the Solicitation Period End Date, the Company may continue to engage in the activities described in Section 6.4(b) with respect to any Acquisition Proposal submitted by a Continuing Party on or before the Solicitation Period End Date until 11:59 p.m. (New York City time) on the fifteenth (15th) day following the Solicitation Period End Date (the "Cut-Off Date"), including with respect to any amended or revised Acquisition Proposal submitted by such Continuing Party on or before the Cut-Off Date.
(c) Notwithstanding anything to the contrary contained in Section 6.4(b) but subject to the last sentence of this Section 6.4(c), at any time after the Solicitation Period End Date and prior to the receipt of the Shareholder Approval, following the receipt of a bona fide written Acquisition Proposal that did not result from a breach of Section 6.4(b) in any material respect, the Company and its Representatives may, subject to compliance with the other provisions of this Section 6.4 and acting under the direction of the Special Committee:
(i) contact the Person who has made such Acquisition Proposal to clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such Acquisition Proposal constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal;
(ii) provide information in response to the request of the Person who has made such Acquisition Proposal, if and only if, prior to providing such information, the Company has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement, provided that the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation promptly make available to commence litigation) to enforce the employee Parent any material non-solicit/nopublic information concerning the Company and the Company Subsidiaries that is provided to any Person making such Acquisition Proposal that is given such access and that was not previously or concurrently made available to Parent or the Parent Representatives; or
(iii) engage or participate in any discussions or negotiations with the Person who has made such Acquisition Proposal; provided that prior to taking any action described in Section 6.4(c)(ii) or Section 6.4(c)(iii) above, (x) the Special Committee shall have determined in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors' fiduciary duties under applicable Laws, and (y) the Special Committee shall have determined in good faith, based on the information then available and after consultation with its independent nationally recognized financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. Notwithstanding the foregoing, the Company shall not provide any commercially sensitive non-hire provisions public information to any competitor in connection with the actions permitted by Section 6.4(c)(ii), except in a manner consistent with the Company's past practice in dealing with the disclosure of such information in the context of considering Acquisition Proposals prior to the date of this Agreement.
(d) Except as expressly provided by Section 6.4(e), neither the Company Board nor any committee thereof shall:
(i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (C) publicly take, disclose a position with regard to or issue any statement referencing an Acquisition Proposal (other than a "stop, look and listen" communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board has received and is currently evaluating such Acquisition Proposal) that is not an express rejection of any confidentiality agreement applicable Acquisition Proposal or an express reaffirmation of its recommendation in favor of the transactions contemplated by this Agreement, (D) fail to include the Company Recommendation in the Proxy Statement or (E) cause or permit the Company or any Company Subsidiary to enter into any letter of intent, memorandum of understanding or similar document or Contract relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 6.4(a) or Section 6.4(c)) (any Person whether prior toaction described in clauses (A) through (E), on a "Company Adverse Recommendation Change"); or
(ii) cause or after permit the Company or any Company Subsidiary to enter into any acquisition agreement, merger agreement or other similar definitive agreement relating to any Acquisition Proposal (an "Alternative Acquisition Agreement").
(e) Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and at any time prior to obtaining the provision thereof requiring Shareholder Approval, the other party thereto Special Committee may (x) in response to keep confidential any proprietaryan Intervening Event, confidential information about (A) effect a Company Adverse Recommendation Change and/or (B) authorize the Company obtained by such to terminate this Agreement or (y) if the Company has received an Acquisition Proposal from any Person pursuant (either before or after the Solicitation Period End Date) that is not withdrawn and that the Special Committee concludes in good faith constitutes a Superior Proposal, (A) effect a Company Adverse Recommendation Change with respect to such confidentiality agreement Superior Proposal and/or (it being understood B) authorize the Company to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in the case of both clause (x) and (y), if and only if:
(i) the Special Committee determines in good faith, after consultation with its independent nationally recognized financial advisor and outside legal counsel, that failure to do so would be inconsistent with the directors' fiduciary duties under applicable Laws;
(ii) prior to effecting a Company Adverse Recommendation Change or terminating this Agreement to enter into an Alternative Acquisition Agreement in accordance with Section 6.4(e)(y), (A) the Company shall have provided prior written notice to Parent at least five (5) Business Days in advance (the "Superior Proposal Notice Period"), to the effect that the Company may provide has received an Acquisition Proposal that is not withdrawn and that the Special Committee concludes in good faith constitutes a Superior Proposal and, absent any consent revision to the terms and grant conditions of this Agreement, the Special Committee has resolved to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to Section 8.1(c)(iv), which notice shall specify the identity of the party making the Superior Proposal, the material terms thereof and copies of all relevant documents relating to such Superior Proposal, and (B) the Company shall, and shall cause its financial and legal advisors to, during the Superior Proposal Notice Period, (1) negotiate with Parent and the Parent Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a Superior Proposal, and (2) permit Parent and the Parent Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any approval adjustments with respect thereto (to the extent Parent desires to make such presentation); provided that in the event of any material revisions to the Acquisition Proposal that the Company Board has determined to be a Superior Proposal, the Company shall deliver a new written notice to Parent and to comply with the requirements of this Section 6.4 (including Section 6.4(e)) with respect to such new written notice; provided further, that references to the five (5) Business Day period above shall be deemed to be references to a two (2) Business Day period;
(iii) in the case of any action described in Section 6.4(e)(x)(B) above, the Company shall have validly terminated this Agreement in accordance with Section 8.1(c)(v), including the payment of the Company Termination Fee in accordance with Section 8.2(b)(i); and
(iv) in the case of any action described in Section 6.4(e)(y)(B) above, the Company shall have validly terminated this Agreement in accordance with Section 8.1(c)(iv), including the payment of the Company Termination Fee in accordance with Section 8.2(b)(i).
(f) Nothing contained in this Section 6.4 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal, including taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act; provided that any such confidentiality agreement)disclosure (other than a "stop, look and listen" communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board has received and is currently evaluating such Acquisition Proposal) that is not an express rejection of any applicable Acquisition Proposal or an express reaffirmation of its recommendation in favor of the transactions contemplated by this Agreement shall be deemed to be a Company Adverse Recommendation Change, or (ii) making any "stop-look-and-listen" communication of the type contemplated by Rule 14d-9(f) under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (China Fire & Security Group, Inc.)
Solicitation; Change in Recommendation. (a) During Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. p.m. (New York City time) on the 51st 40th day following the date of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, consultants, agents, advisors advisors, Affiliates and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit, facilitate solicit and encourage Takeover ProposalsProposals (as defined herein) (or inquiries, proposals or offers or other efforts or attempts that are reasonably expected to lead to a Takeover Proposal), including by way of providing access to non-public information to any other Person or group of Persons pursuant to an (but only pursuant to) one or more Acceptable Confidentiality AgreementAgreements (as defined herein); provided that the Company shall promptly make available (and, in any event within forty-eight (48) hours) provide to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available provided to any Person given such access which was not previously made available provided to Parent and Merger Subor its Representatives; and (ii) enter into into, engage in, and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations regarding a Takeover Proposalnegotiations. For the purposes of this Agreement, “Acceptable Confidentiality Agreement” means a any confidentiality and standstill agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (Agreement, it being understood and agreed that such confidentiality agreement agreements need not prohibit the making submission of Takeover Proposals or amendment of any Takeover Proposal). From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, on or after the date of this Agreement and the provision thereof requiring the other party amendments thereto to keep confidential any proprietary, confidential information about the Company obtained by such Person pursuant to such confidentiality agreement (it being understood that the Company may provide any consent and grant any approval contemplated by any such confidentiality agreement)Company’s Board of Directors.
Appears in 1 contract
Solicitation; Change in Recommendation. (a) During the period beginning on the date of Except as permitted by this Agreement and continuing until 12:01 a.m. (New York City time) on the 51st day following the date of this Agreement (the “No-Shop Period Start Date”)Section 6.4, the Company and its Subsidiaries and their respective officers, directors, employees, agents, advisors and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit, facilitate and encourage Takeover Proposals, including by way of providing access to non-public information to any other Person or group of Persons pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available to any Person given such access which was not previously made available to Parent and Merger Sub; and (ii) enter into and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any inquiries, proposals, discussions or negotiations regarding a Takeover Proposal. For purposes of this Agreement, “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal). From from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use commercially reasonable efforts not and shall cause each of the Company Subsidiaries and their respective officers, directors, employees, counsel, accountants, consultants, agents, advisors, Affiliates and other representatives (it being understood such efforts do collectively, “Company Representatives”) not include an obligation to commence litigationto, directly or indirectly, (A) to enforce the employee solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-solicit/no-hire provisions public information) any inquiries regarding, or the making of any confidentiality agreement entered into with any Person whether prior proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal, (B) engage in, continue or otherwise knowingly participate in any discussions or negotiations regarding, or furnish to any other party information in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal or (C) enter into any letter of intent, agreement or agreement in principle with respect to a Takeover Proposal.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time on or after the date of this Agreement and the provision thereof requiring the other party thereto prior to keep confidential any proprietary, confidential information about obtaining the Company obtained by Shareholder Approval, the Company or any of the Company Representatives receives a written Takeover Proposal from any Person, which Takeover Proposal did not result from any breach of this Section 6.4, and the Company Board determines in good faith, after consultation with independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior Proposal, then the Company and the Company Representatives may (x) furnish, provided that the Company first receives from such Person pursuant an executed Acceptable Confidentiality 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 confidentiality Takeover Proposal; provided that the Company shall promptly provide to Parent any material non-public 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 Takeover Proposal; provided, further that the Company shall promptly provide to Parent (and in any event within 48 hours) (i) a copy of any written Takeover Proposal (including copies of any related debt and equity financing commitment letters) made in writing provided to the Company or any Company Subsidiary, and the identity of the Person making the Takeover Proposal, and (ii) a written summary of the material terms of any such Takeover Proposal not made in writing. From and after the date hereof, the Company shall not grant any waiver, amendment or release under any standstill agreement without the prior written consent of Parent (it being understood that the Company shall have no obligation to seek to modify any such agreement that by its terms becomes inoperative in accordance with the terms of such agreement as in effect on the date of this Agreement).
(c) Following the date of this Agreement, the Company shall keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Takeover Proposal on a current basis (and in any event within 48 hours) and shall notify Parent of the status of such Takeover Proposal. The Company agrees that neither it nor any Company Subsidiary will 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 6.4.
(d) Except as expressly permitted by this Section 6.4(d) or Section 6.4(e), the Company Board shall not (i)(A) fail to make the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (B) change, qualify, withhold, withdraw or modify, or publicly propose to change, qualify, withhold, withdraw or modify, or publicly propose in a manner adverse to Parent, the Company 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 “Company Adverse Recommendation Change”), (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 an Acceptable Confidentiality Agreement) (each, a “Company Acquisition Agreement”) or (iii) take any action pursuant to Section 8.1(e). Notwithstanding anything to the contrary in this Agreement, prior to the time the Company Shareholder Approval is obtained, but not after, the Company Board may provide make a Company Adverse Recommendation Change or enter into a Company Acquisition Agreement with respect to a Takeover Proposal, if and only if, prior to taking such action, the Company Board has determined in good faith, after consultation with independent financial advisors and outside legal counsel, (u) that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (v) that such Takeover Proposal constitutes a Superior Proposal; provided, however, that (w) the Company has given Parent at least four (4) full Business Days’ prior written notice of its intention to take such action, which notice shall specify the material terms and conditions of any consent such Superior Proposal (including the identity of the party making such Superior Proposal) and grant has contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and all related debt and equity financing commitment letters, (x) the Company has negotiated, and has caused the Company Representatives to negotiate, in good faith with Parent during such notice period, to enable Parent to propose changes to the terms of this Agreement, the Financing Commitments and the Guaranty such that it would cause such 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 approval revisions to this Agreement, the Financing Commitments and the Guaranty proposed 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 event of any material change to the material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice and the notice period shall have recommenced, except that the notice period shall be at least three (3) full Business Days unless the event requiring notice pursuant to this Section 6.4(d) occurred less than three (3) Business Days prior to the Company Shareholders’ Meeting, in which case the Company shall deliver notice to Parent of such event as promptly as practicable; and provided, further that the Company has complied in all material respects with its obligations under this Section 6.4; and provided, further, that any purported termination of this Agreement pursuant to this Section 6.4 shall be void and of no force or effect, and the Company shall not enter into a Company Acquisition Agreement unless the Company terminates this Agreement in accordance with Section 8.1 and the Company pays to Parent the Termination Fee in accordance with Section 8.3 prior to or concurrently with such termination.
(e) Notwithstanding anything to the contrary herein, prior to the time the Company Shareholder 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 modify, in a manner adverse to Parent, the Company Recommendation (“Change of Recommendation”) in response to an Intervening Event if the Company Board has determined in good faith, after consultation with independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that prior to taking such action, (x) the Company Board has given Parent at least four (4) full Business Days’ prior written notice of its intention to take such action and a description of the Intervening Event, (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, the Financing Commitments and the Guaranty in such a manner that would obviate the need for taking such action as a result of an Intervening Event and (z) following the end of such notice period, the Company Board shall have considered in good faith any changes to this Agreement, the Financing Commitments and the 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 Recommendation in response to an Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law.
(f) Nothing in this Section 6.4 shall prohibit the Company Board from taking and disclosing to the stockholders of the Company 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; provided, however, that the Company Board and the Company shall not recommend that the stockholders of the Company tender their shares in connection with any such confidentiality agreement)tender offer or exchange offer (or otherwise approve or recommend any Takeover Proposal) unless the requirements of Sections 6.4(d) and 6.4(e) shall have been satisfied.
(g) 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 and the Company Subsidiaries equal to more than 20% of the Company’s consolidated assets or to which more than 20% of the Company’s revenues or earnings on a consolidated basis are attributable, (B) acquisition of more than 20% of the outstanding Company Common Stock, (C) tender offer or exchange offer that if consummated would result in any Person beneficially owning more than 20% 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 Company Common Stock involved is more than 20%; in each case, other than the Transaction.
Appears in 1 contract
Solicitation; Change in Recommendation. (a) During Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. 11:59 p.m. (New York City time) on the 51st day following the date of this Agreement (the “No-Shop Period Start Date”)January 15, 2011, the Company and its Subsidiaries and their respective officers, directors, employees, consultants, agents, advisors financial advisors, attorneys, accountants, other advisors, Affiliates and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right toto directly or indirectly: (i) initiate, solicitsolicit and encourage, facilitate and encourage whether publicly or otherwise, Takeover ProposalsProposals (or inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to a Takeover Proposal), including by way of providing access to non-public information to any other Person or group of Persons pursuant to an (but only pursuant to) one or more Acceptable Confidentiality AgreementAgreements; provided provided, that the Company shall promptly make available (and in any event within forty-eight hours) provide to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available provided to any Person given such access which was not previously made available provided to Parent and Merger Subor its Representatives; and (ii) enter into into, engage in, and maintain or continue discussions or negotiations with respect to Takeover Proposals (or inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to a Takeover Proposal) or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, offers, efforts, attempts, discussions or negotiations regarding a Takeover Proposalnegotiations. For the purposes of this Agreement, “Acceptable Confidentiality Agreement” means a any customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement, except that an Acceptable Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making submission of Takeover Proposals or amendment of any Takeover Proposal). From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, on or after the date of this Agreement and the provision thereof requiring the other party amendments thereto to keep confidential any proprietary, confidential information about the Company obtained by such Person pursuant to such confidentiality agreement (it being understood that Company’s Board of Directors or the Company may provide any consent and grant any approval contemplated by any such confidentiality agreement)Special Committee.
Appears in 1 contract
Samples: Merger Agreement (J Crew Group Inc)
Solicitation; Change in Recommendation. (a) During The Company and its Subsidiaries shall, and shall use their reasonable best efforts to cause their Representatives to, cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Takeover Proposal, provided, however, that the period beginning Company may (i) continue discussions or negotiations from the date hereof until 11:59 p.m., Pacific time, on April 4, 2008 (the “Initial Period”) with the Person (the “Excluded Party”) identified to Parent in writing on the date of this Agreement hereof and continuing until 12:01 a.m. (New York City timeii) on during the 51st day following the date of this Initial Period, furnish pursuant to an Acceptable Confidentiality Agreement (as defined below) any information with respect to the “No-Shop Company and its Subsidiaries to the Excluded Party, provided that any such information must be provided to Parent as promptly as is reasonably practicable after its provision to the Excluded Party to the extent not previously made available to Parent. Except with respect to the Excluded Party during the Initial Period Start Date”)or as otherwise expressly permitted by this Section 5.4, the Company and its Subsidiaries shall not, and shall use their respective officersreasonable best efforts to cause their Representatives not to, directors, employees, agents, advisors and other representatives directly or indirectly (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (iA) initiate, solicit, facilitate and knowingly solicit or knowingly encourage Takeover Proposals, (including by way of providing access to furnishing non-public information information), any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to any other Person result in, a Takeover Proposal or group of Persons pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available to any Person given such access which was not previously made available to Parent and Merger Sub; and (iiB) enter into and maintain or engage in, continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate in any inquiries, proposals, discussions or negotiations regarding a Takeover Proposal. The Company shall not grant any waiver, amendment or release under any standstill agreement after the date hereof without the prior written consent of Parent.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), subject to the Company’s compliance in all material respects with this Section 5.4 and only prior to obtaining the Company Stockholder Approvals, following receipt by the Company of a written Takeover Proposal from a Person, the Company and its Representatives may contact such Person solely in order to (i) clarify and understand the terms and conditions of any Takeover Proposal made by such Person so as to determine whether such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal and (ii) notify such Person of the provisions of this Agreement. Notwithstanding anything to the contrary contained in Section 5.4(a), subject to the Company’s compliance in all material respects with this Section 5.4, if the board of directors of the Company receives a written Takeover Proposal after the date of this Agreement and prior to obtaining the Company Stockholder Approvals that the board of directors of the Company determines constitutes or could reasonably be expected to result in a Superior Proposal, then prior to obtaining the Company Stockholder Approvals the Company may (i) furnish pursuant to an Acceptable Confidentiality Agreement any information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal, provided that any such information must be provided to Parent as promptly as is reasonably practicable after its provision to such Person to the extent not previously made available to Parent, and (ii) participate in discussions and negotiations with such Person regarding a Takeover Proposal if, but only if, in the case of either clause (i) or (ii) the board of directors of the Company determines in good faith, after consultation with Company’s outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law.
(c) The Company shall promptly (and in any event within twenty-four (24) hours after receipt by, or notification to, the Company or its financial advisor), notify Parent of the receipt (or notification) of any Takeover Proposal or any inquiries relating to a Takeover Proposal or any request for information from, or any negotiations sought to be initiated or continued with, either the Company or its Representatives concerning a Takeover Proposal. The Company’s notice shall include (i) a copy of any written Takeover Proposal and any other documents provided to the Company or any of its Subsidiaries with respect to such Takeover Proposal or (ii) in respect of any Takeover Proposal, any inquiry relating to a Takeover Proposal or any request for information relating to a Takeover Proposal not made in writing, a written summary of the material terms of such Takeover Proposal, inquiry or request, including the identity of the Person or group of Persons making the Takeover Proposal, inquiry or request. The Company shall keep Parent reasonably informed on a prompt basis of the status or developments regarding any Takeover Proposal, inquiry or request. None of the Company or any of its Subsidiaries shall, after the date of this Agreement, enter into any agreement that would prohibit them from providing such information to Parent. For the purposes of this Agreement, “Acceptable Confidentiality Agreement” means a any confidentiality agreement entered into after the date of this Agreement that contains provisions that are no less favorable in the aggregate any material respect to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal). From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, on or after the date of this Agreement and the provision thereof requiring the other party thereto to keep confidential any proprietary, confidential information about the Company obtained by such Person pursuant to such confidentiality agreement (it being understood that the Company may provide any consent and grant any approval contemplated by any such confidentiality agreementas defined below).
Appears in 1 contract
Samples: Merger Agreement (Getty Images Inc)
Solicitation; Change in Recommendation. (a) During the period beginning on the date of The Company and its Subsidiaries shall, and shall use their reasonable best efforts to cause their Representatives to, cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Takeover Proposal. Except as otherwise expressly permitted by this Agreement and continuing until 12:01 a.m. (New York City time) on the 51st day following the date of this Agreement (the “No-Shop Period Start Date”)Section 5.4, the Company and its Subsidiaries shall not, and shall use their respective officersreasonable best efforts to cause their Representatives not to, directors, employees, agents, advisors and other representatives directly or indirectly (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (iA) initiate, solicit, facilitate and knowingly solicit or knowingly encourage Takeover Proposals, (including by way of providing access to furnishing non-public information information), any inquiries regarding, or the making of any proposal or offer that constitutes, or could reasonably be expected to any other Person result in, a Takeover Proposal or group of Persons pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available to any Person given such access which was not previously made available to Parent and Merger Sub; and (iiB) enter into and maintain or engage in, continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate in any inquiries, proposals, discussions or negotiations regarding a Takeover Proposal. For purposes The Company shall not grant any waiver, amendment or release under any standstill agreement after the date hereof without the prior written consent of Parent.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), but subject to the Company's compliance in all material respects with the other provisions of this Section 5.4 and only prior to obtaining the Company Stockholder Approvals, following receipt by the Company of a Takeover Proposal from a Person, the Company and its Representatives may contact such Person solely in order to (i) clarify and understand the terms and conditions of any Takeover Proposal made by such Person so as to determine whether such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal and (ii) notify such Person of the provisions of this Agreement, “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate . Notwithstanding anything to the Company than those contrary contained in Section 5.4(a), but subject to the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit Company's compliance in all material respects with the making or amendment of any Takeover Proposal). From the date other provisions of this Agreement until the Effective Time orSection 5.4, if earlier, the termination board of this Agreement in accordance with Article VIII, directors of the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, on or receives a written Takeover Proposal after the date of this Agreement and the provision thereof requiring the other party thereto prior to keep confidential any proprietary, confidential information about obtaining the Company obtained by such Person pursuant Stockholder Approvals that the board of directors of the Company determines constitutes or could reasonably be expected to such confidentiality agreement (it being understood that result in a Superior Proposal, then prior to obtaining the Company Stockholder Approvals the Company may provide (i) furnish pursuant to an Acceptable Confidentiality Agreement any consent information with respect to the Company and grant any approval contemplated by its Subsidiaries to the Person making such Takeover Proposal, provided that any such confidentiality agreement).information must be provided to Parent as promptly as is reasonably practicable after its provision to such Person to the extent not previously made available to Parent, and (ii) participate in discussions and negotiations with such Person regarding a Takeover Proposal if, but only if, in the case of either clause (i) or (ii) the board of directors of the Company determines in good faith, after consultation with the Company's outside legal counsel, that the
Appears in 1 contract
Solicitation; Change in Recommendation. (a) During Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until 12:01 a.m. 11:59 p.m. (Rochester, New York City time) on the 51st forty-fifth (45th) day following the date of this Agreement (the “NoGo-Shop Period Start End Date”), the Company Target and its Subsidiaries and their respective directors, officers, directors, employees, agents, advisors and other representatives investment bankers (such Persons, together with the Subsidiaries of the Company, collectivelyrespect to any Person, the foregoing Persons are referred to herein as such Person’s “Company Representatives”) shall have the right to: (i) to initiate, solicit, facilitate solicit and encourage Takeover ProposalsProposals (or inquiries, proposals or offers or other efforts or attempts that are reasonably expected to lead to a Takeover Proposal), including by way of providing access to non-public information to any other Person or group of Persons pursuant to an (but only pursuant to) one or more Acceptable Confidentiality AgreementAgreements; provided that the Company shall Target will promptly make available (and, in any event within twenty-four (24) hours) provide to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries Target that is made available provided to any Person given such access which was not previously made available provided to Parent and Merger Sub; and (ii) or its Representatives. Following the Go-Shop Period End Date, the Target may enter into into, engage in and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, efforts, attempts, discussions or negotiations regarding only with Persons that provided a Takeover Proposal. For purposes of this Agreement, “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate Proposal prior to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal)Go-Shop Period End Date. From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, The period commencing on or after the date of this Agreement and ending on the provision date on which all such discussions or negotiations with respect to Takeover Proposals terminate is referred to herein as the “Go-Shop Period.”
(b) If at any time prior to the end of the Go-Shop Period, the Target or any of its Representatives is in receipt of a bona fide written Takeover Proposal from any Person, and the Target Board determines in good faith, upon recommendation of the Special Committee, that such Takeover Proposal constitutes a Superior Proposal, then the Target will promptly provide to Parent (and in any event within twenty-four (24) hours) (i) a copy of any Takeover Proposal made in writing provided to the Target, and the identity of the Person making the Takeover Proposal and (ii) a written summary of the material terms of any such Takeover Proposal not made in writing.
(c) Following the Go-Shop Period End Date, the Target will keep Parent reasonably informed on a current basis of any material developments, discussions or negotiations regarding any Takeover Proposal on a prompt basis and will notify Parent of the status of such Takeover Proposal. The Target will not enter into any agreement with any Person subsequent to the date hereof which prohibits the Target from providing any information to Parent in accordance with this Section 7.04.
(d) Except as expressly permitted by this Section 7.04(d) or Section 7.04(e), neither the Target Board nor any committee thereof requiring shall (i) fail to make, withdraw, amend, modify or qualify, in a manner adverse to Parent or Merger Sub, the Target Board Recommendation, or recommend a Takeover Proposal, or make any public statement inconsistent with the Target Board Recommendation, or resolve or agree to take any of the foregoing actions (any of the foregoing a “Target Adverse Recommendation Change”), or (ii) authorize, cause or permit the Target to enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract, in each case relating to any Takeover Proposal (each, a “Target Acquisition Agreement”). Notwithstanding anything to the contrary herein, if, prior to the end of the Go-Shop Period, the Target is in receipt of a bona fide written Takeover Proposal that the Target Board determines in good faith, upon recommendation of the Special Committee, constitutes a Superior Proposal, after (in each case) giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent, then the Target Board may (y) make a Target Adverse Recommendation Change and (z) terminate this Agreement and enter into a Target Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Target Board may not make a Target Adverse Recommendation Change unless: (A) such Superior Proposal has been made and has not been withdrawn and continues to be a Superior Proposal, (B) the Target has given Parent at least three (3) Business Days’ prior written notice of its intention to take such action (which notice will specify the material terms and conditions of any such Superior Proposal (including the identity of the party thereto making such Superior Proposal)), and (C) prior to keep confidential effecting such Target Adverse Recommendation Change or terminating this Agreement to enter into a Target Acquisition Agreement with respect to such Superior Proposal, the Target has negotiated, and has caused its 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; provided further that if the Target receives any proprietary, confidential information about the Company obtained by such Person Takeover Proposal pursuant to which the Target’s stockholders would be entitled to receive 120% or more of the Merger Consideration, and the Target Board determines, upon recommendation of the Special Committee, that such confidentiality agreement Takeover Proposal constitutes a Superior Proposal, then the rights and obligations of the parties pursuant to the immediately preceding Subsection C will not apply. If the Target terminates this Agreement in accordance with this Section 7.04(d), then the Target will pay to Parent the Termination Fee as provided in Section 9.06(b).
(it being understood e) Notwithstanding anything to the contrary herein, prior to the time the Requisite Target Vote is obtained, but not after, the Target may make a Target Adverse Recommendation Change (i) in response to an Intervening Event, or (ii) if, prior to the commencement of the Offer as provided in Section 2.01(a), the Target receives a bringdown or other update to the Fairness Opinion indicating that the Company may provide any consent consideration to be received in the Offer and grant any approval the Merger by the holders of shares of Target Common Stock (other than Parent and Merger Sub) is not fair, from a financial point of view, to the holders of shares of Target Common Stock, if the Target Board determines in good faith that the failure to take such action in response to Section 7.04(e)(i) or Section 7.04(e)(ii) would reasonably be expected to cause the Target Board to be in breach of its fiduciary duties under applicable Law.
(f) Nothing contained herein will prevent the Target Board from disclosing to the Target’s stockholders a position contemplated by any Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Target determines that failure to disclose such confidentiality agreement)position would constitute a violation of applicable Law.
Appears in 1 contract
Solicitation; Change in Recommendation. (a) During Notwithstanding any other provision of this Agreement to the contrary, during the period beginning on the date of this Agreement and continuing until until
12:01 a.m. p.m. (New York City time) on the 51st fortieth (40th) day following the date of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, consultants, agents, advisors advisors, Affiliates and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit, facilitate solicit and encourage Takeover ProposalsProposals (as defined herein) (or inquiries, proposals or offers or other efforts or attempts that are reasonably expected to lead to a Takeover Proposal), including by way of providing access to non-public information to any other Person or group of Persons pursuant to an (but only pursuant to) one or more Acceptable Confidentiality AgreementAgreements (as defined herein); provided that the Company shall promptly make available (and, in any event within twenty-four (24) hours) provide to Parent and Merger Sub any material non-public information provided orally and any non-public information provided in writing, in each case, concerning the Company or its Subsidiaries that is made available provided to any Person given such access which was not previously made available provided to Parent and Merger Subor its Representatives; and (ii) enter into into, engage in, and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations regarding negotiations. No later than twenty-four (24) hours 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 a Takeover ProposalProposal prior to the No-Shop Period Start Date. For the purposes of this Agreement, “Acceptable Confidentiality Agreement” means a any confidentiality and standstill agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal). From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, on or after the date of this Agreement and the provision thereof requiring the other party thereto to keep confidential any proprietary, confidential information about the Company obtained by such Person pursuant to such confidentiality agreement (it being understood that the Company may provide any consent and grant any approval contemplated by any such confidentiality agreement)Agreement.
Appears in 1 contract
Samples: Merger Agreement (Dynamex Inc)
Solicitation; Change in Recommendation. (a) During Except as expressly permitted by this Section 6.4, the period beginning on Company shall, and shall cause the Company Subsidiaries to, and shall use best efforts to cause the directors, officers and employees, consultants, agents, advisors, Affiliates and other representatives (collectively, “Representatives”) of it and the Company Subsidiaries to, cease any discussions or negotiations with any Person that may be ongoing as of the date of this Agreement and continuing until 12:01 a.m. (New York City time) on the 51st day following the date of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, agents, advisors and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit, facilitate and encourage Takeover Proposals, including by way of providing access to non-public information to any other Person or group of Persons pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available to any Person given such access which was not previously made available to Parent and Merger Sub; and (ii) enter into and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any inquiries, proposals, discussions or negotiations regarding a Takeover Proposal. For purposes of Except as permitted by this AgreementSection 6.4, “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal). From from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, and shall cause the Company Subsidiaries not to, and shall use commercially reasonable best efforts to cause the Representatives of it and the Company Subsidiaries not to, directly or indirectly, (it being understood such efforts do not include an obligation to commence litigationA) to enforce solicit, initiate, knowingly facilitate or knowingly encourage any inquiries regarding, or the employee non-solicit/no-hire provisions making of any confidentiality agreement entered into with any Person whether prior 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 Person information in connection with or for the purpose of encouraging or facilitating, a Takeover Proposal, (C) enter into any letter of intent, Contract or agreement in principle with respect to a Takeover Proposal, (D) approve or recommend any Takeover Proposal or any letter of intent, Contract or agreement in principle with respect to a Takeover Proposal, or (E) modify, waive, amend or release any standstill or similar provisions in any letter of intent, Contract or agreement in principle with respect to it or any Company Subsidiary, except in the case of this clause (E) if the Company Board determines in good faith (after consultation with outside counsel) that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, that the Company shall in all instances provide Parent with reasonable prior written notice of any decision to modify, waive, amend or release any standstill or similar provisions in any letter of intent, Contract or agreement in principle with respect to it or any Company Subsidiary (including the identity of the Person in respect of which such decision has been made).
(b) Notwithstanding anything to the contrary contained herein, if at any time on or after the date of this Agreement and the provision thereof requiring the other party thereto prior to keep confidential any proprietary, confidential information about obtaining the Company obtained 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 6.4 or Section 4.4 of the Voting Agreement, dated as of the date hereof, by and among Parent, Xxxxxx Xxxxxx and Atlantic Investors, LLC (the “Atlantic Voting Agreement”) if the Company Board determines in good faith, after consultation with outside legal counsel, that failure to take such Person action would 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 (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 who has made such confidentiality Takeover Proposal; provided, that the Company shall substantially concurrently (and in any event no later than twenty-four (24) hours) provide to Parent any information concerning the Company or the Company Subsidiaries that is provided to any Person given such access, which information was not previously provided or made available to Parent or its Representatives; and (y) engage in or otherwise participate in discussions or negotiations concerning such Takeover Proposal with the Person or group of Persons who has made such Takeover Proposal.
(c) Following the date of this Agreement, the Company shall keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Takeover Proposal on a reasonably prompt basis. Without limitation to the generality of the foregoing, the Company shall, as promptly as reasonably practicable following, but in any event within thirty-six (36) hours of, its receipt of any Takeover Proposal or any inquiry with respect to, or that would reasonably be expected to lead to, any Takeover Proposal, notify Parent in writing of the receipt of such Takeover Proposal or such inquiry, specifying the material terms and conditions thereof and the identity of the Person or group of Persons making such Takeover Proposal or such inquiry, and the Company shall, as promptly as reasonably practicable following, but in any event within thirty-six (36) hours of, its receipt of such Takeover Proposal or such inquiry, provide to Parent a copy of all written proposals provided to the Company or any Company Subsidiary in connection with any such Takeover Proposal or such inquiry. In addition, the Company shall, as promptly as reasonably practicable following, but in any event within thirty-six (36) hours of, its receipt of any material modifications to the financial or other material terms of such Takeover Proposal or such inquiry, notify Parent in writing of such material modifications and shall, as promptly as reasonably practicable following, but in any event within thirty-six (36) hours of, its receipt of any written proposal subsequently provided to the Company or any of the Company Subsidiaries in connection with any such Takeover Proposal or such inquiry, provide to Parent a copy of such written proposal.
(d) Except as permitted by this Section 6.4(d), the Company Board shall not (i) (A) change, qualify, withhold, withdraw or modify, publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Company Recommendation, (B) if a tender offer or exchange offer for shares of Company Common Stock that constitutes a Takeover Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the Company stockholders (including, for these purposes, by taking no position with respect to the acceptance of such tender offer or exchange offer by its stockholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement thereof, (C) fail to reaffirm the Company Recommendation publicly within ten (10) Business Days after Parent has made a request in writing therefor or (D) adopt, approve or recommend, publicly propose to adopt, approve or recommend any Takeover Proposal, or fail to reject promptly (and in any event within ten (10) Business Days) any Takeover Proposal publicly after such Takeover Proposal has been publicly made (actions described in this clause (i) being referred to as a “Company Adverse Recommendation Change”), (ii) authorize, cause or permit the Company or any Company Subsidiary to enter into any letter of intent, Contract or agreement in principle with respect to any Takeover Proposal (other than an Acceptable Confidentiality Agreement) or (iii) take any action pursuant to Section 8.1(e). Notwithstanding anything to the contrary herein, prior to the time the Company Stockholder Approval is obtained, but not after, the Company Board may (I) effect a Company Adverse Recommendation Change, or (II) in response to a Takeover Proposal which constitutes a Superior Proposal and did not result from a breach of this Section 6.4 or Section 4.4 of the Atlantic Voting Agreement, cause the Company to terminate this Agreement and enter into a definitive agreement with respect to such Superior Proposal. The Company shall not be entitled to exercise its rights set forth under Section 6.4(d)(I) unless (A) the Company Board has determined in good faith, after consultation with outside counsel, that the failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) the Company has given Parent at least three (3) Business Days’ prior written notice of its intention to take such action and Parent does not make, within three (3) Business Days after receipt of such prior written notice provided for in clause (B) of this sentence, a proposal that would, in the good faith determination of the Company Board (after consultation with its outside counsel and financial advisor), permit the Company Board not to effect a Company Adverse Recommendation Change. The Company shall not be entitled to exercise its rights set forth under Section 6.4(d)(II) unless (w) the Company Board has determined in good faith, after consultation with outside counsel, that the failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Law, (x) the Company has given Parent at least three (3) Business Days’ prior written notice of its intention to take such action (which prior written notice shall specify the basis therefor and attach the most current version of any proposed agreement, letter of intent, Contract or agreement in principle relating to the transaction that constitutes such Superior Proposal, the identity of the Person or group of Persons making such Superior Proposal and any other material terms and conditions of such Superior Proposal), (y) Parent does not make, within three (3) Business Days after receipt of the prior written notice provided for in clause (x) of this sentence (it being understood and agreed that any change to the financial or other material terms of such Superior Proposal shall require an additional prior written notice to Parent and a new two (2) Business Day period), a proposal that would, in the good faith determination of the Company Board (after consultation with its outside counsel and financial advisor), cause the Takeover Proposal to no longer constitute a Superior Proposal, and (z) before or concurrently with any termination in accordance with this Section 6.4(d), the Company shall pay the Termination Fee pursuant to Section 8.3(a).
(e) Nothing in this Section 6.4 shall prohibit the Company Board from taking and disclosing to the stockholders of the Company 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 the Company Board determines in good faith, after consultation with outside counsel, that the failure to do so would be inconsistent with its fiduciary duties or would violate applicable Law; provided, that, in no event shall the Company Board take any action prohibited by Section 6.4(d) without complying with the terms of such provision. In addition, it is understood and agreed that, for purposes of this Agreement, (i) a factually accurate public statement by the Company that describes the Company’s receipt of a Takeover Proposal and the operation of this Agreement with respect thereto, shall not be deemed a withdrawal or modification of, or a proposal by the Company Board to withdraw or modify the Company Recommendation, or an approval or recommendation with respect to such Takeover Proposal, so long as such public statement includes a statement that the Company may provide Board continues to support the Company Recommendation, and (ii) any consent “stop, look and grant listen” communication by the Company Board pursuant to Rule 14d-9(f) under the Exchange Act, or any similar communication to the stockholders of the Company or otherwise, shall not constitute a Company Adverse Recommendation Change or a withdrawal or modification, or a proposal by the Company Board to withdraw or modify the Company Recommendation, or an approval contemplated or recommendation with respect to any Takeover Proposal, so long as such communication includes a statement that the Company Board continues to support the Company Recommendation.
(f) As used in this Agreement, “Takeover Proposal” means any bona fide written 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, after the date of this Agreement relating to, in a single transaction or series of related transactions, any (A) acquisition of assets of the Company and the Company Subsidiaries equal to 20% or more of the 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 “beneficial ownership,” within the meaning of Section 13(d) of the Exchange Act, of shares of capital stock or other securities representing 20% or more of the voting power of the Company or any Company Subsidiary, including by way of a merger, consolidation, stock exchange, tender offer or exchange offer or otherwise, (C) tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the voting power of the Company or any Company Subsidiary, (D) merger, consolidation, 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, securities of the Company or any Company Subsidiary (including Company Common Stock and Series A Preferred Stock) or voting power of the Company or any Company Subsidiary involved is 20% or more.
(g) As used in this Agreement, “Superior Proposal” means any Takeover Proposal that the Company Board has determined in its good faith judgment, after consultation with outside counsel and financial advisors, is reasonably likely to be consummated in accordance with its terms, taking into account all legal, regulatory and financial aspects of the proposal and the Person making the proposal, and if consummated, would result in a transaction more favorable to the Company’s stockholders from a financial point of view than the Transaction (including any changes to the terms of this Agreement proposed by Parent in response to such confidentiality agreementproposal or otherwise); provided, that for purposes of the definition of “Superior Proposal,” the references to “20%” in the definition of Takeover Proposal shall be deemed to be references to “51%.”
Appears in 1 contract
Samples: Merger Agreement (Navisite Inc)
Solicitation; Change in Recommendation. (a) As of the date hereof, the Company shall and shall cause each of its Subsidiaries and Representatives to immediately cease any solicitation, knowing encouragement, discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal. During the period beginning on Pre-Closing Period, the date Company shall not, and shall cause each of its Subsidiaries and Representatives not to, directly or indirectly, (A) solicit, initiate or 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, 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 Person information in connection with or for the purpose of knowingly encouraging or facilitating, a Takeover Proposal or (C) enter into any letter of intent, agreement or agreement in principle with respect to a Takeover Proposal. Notwithstanding anything to the contrary herein, simultaneously with the execution of this Agreement or at any time during the Pre-Closing Period, the Company shall have the right to grant a “waiver” in the form attached hereto as Annex B of or terminate any “standstill” or similar obligation of any Person under any confidentiality, non-disclosure or similar agreement with the Company solely for the limited purpose of allowing such Person to submit privately a Takeover Proposal to the Company, and continuing until 12:01 a.m. (New York City time) on the 51st day following Merger Sub and Parent acknowledge and agree that the date granting of such waiver or termination shall not be construed or considered to be a breach or violation of this Agreement Section 6.2.
(b) If during the “NoPre-Shop Period Start Date”)Closing Period, the Company or any of its Representatives receives a written Takeover Proposal from any Person or group of Persons, which did not result from in any material respect a breach of this Section 6.2, (A) the Company and its Subsidiaries and their respective officers, directors, employees, agents, advisors and other representatives (Representatives may contact such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit, facilitate and encourage Takeover Proposals, including by way of providing access to non-public information to any other 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 its 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 provided, however, that the Company shall promptly make available (and in any event within 48 hours) provide to Parent and Merger Sub any material non-public information concerning the Company or any of its Subsidiaries that is made available provided to any Person given such access which was not previously made available provided to Parent and Merger Subor its Representatives; and (iiy) enter into and maintain engage in or continue otherwise participate in discussions or negotiations with respect to the Person or group of Persons making such Takeover Proposals Proposal. The Company shall promptly advise Parent in writing (and in any event within 48 hours after receipt of any Takeover Proposal) and shall, unless expressly prohibited by the terms of any confidentiality or otherwise cooperate with or assist or participate innon-disclosure agreement in effect as of the date hereof, or facilitate indicate the identity of the Person making such Takeover Proposal and the material terms of any inquiriessuch Takeover Proposal (including any financing commitments relating thereto).
(c) During the Pre-Closing Period, proposalsthe Company shall keep Parent reasonably informed of any material developments, discussions or negotiations regarding any Takeover Proposal on a current basis (and in any event within 48 hours) and upon the request of Parent shall apprise Parent of the status of such Takeover Proposal. For purposes 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 6.2.
(d) Except as expressly permitted by this Section 6.2(d) or Section 6.2(e), the Company Board shall not (i)(A) fail to make, withhold, withdraw, amend, qualify or modify in a manner adverse to Parent, or publicly propose to withhold, withdraw, amend, qualify or modify in a manner adverse to Parent, the Company Board Recommendation (including any failure to include the Company Board Recommendation in the Schedule 14D-9, when mailed) 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) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, agreement or agreement in principle with respect to any Takeover Proposal (other than an Acceptable Confidentiality Agreement) (each, a “Company Acquisition Agreement”), (iii) take any action pursuant to Section 8.1(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 other than as contemplated under Section 6.2(a). Notwithstanding anything to the contrary herein, during the Pre-Closing Period, the Company Board may make a Company Adverse Recommendation Change or enter into a Company Acquisition Agreement with respect to a Takeover Proposal not solicited in violation of this Section 6.2, if and only if, prior to taking such action, the Company Board has determined in good faith, after consultation with independent financial advisors and outside legal counsel, (x) that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (y) that such Takeover Proposal constitutes a Superior Proposal; provided, however, that (w) the Company has given Parent at least three (3) business days’ prior written notice of its intention to take such action, which notice shall include a written summary of the material terms of any Superior Proposal, an unredacted copy of the relevant proposed transaction agreements and an unredacted copy of any financing commitments relating thereto, (x) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent during such notice period, to the extent Parent wishes to negotiate, to enable Parent to propose revisions to the terms of this Agreement, “Acceptable Confidentiality the Financing Letters and the Guaranty such that it would cause such 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 proposed revisions to this Agreement” means , the Financing Letters and the Guaranty proposed in writing by Parent, and shall have determined that the Superior Proposal would continue to constitute a confidentiality agreement that contains provisions that are no less favorable Superior Proposal if such revisions were to be given effect and (z) in the aggregate event of any material change to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that material terms of such confidentiality agreement need not prohibit the making or amendment of any Takeover Superior Proposal). From the date of this Agreement until the Effective Time or, if earlier, 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 have recommenced, except that references to the three (3) business days’ notice period shall be deemed to be references to a two (2) business days’ notice period; and provided, further, that the Company has complied in all material respects with its obligations under this Section 6.2 with respect to the Takeover Proposal with respect to which the Company is seeking to effect a Company Adverse Recommendation Change or enter into a Company Acquisition Agreement; 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 Company termination is in accordance with Article VIIISection 8.1 and the Company pays Parent the Company Termination Fee in accordance with Section 8.3 prior to or concurrently with such termination.
(e) Notwithstanding anything to the contrary herein, during the Pre-Closing Period, the Company Board may change, 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 (“Change of Recommendation”) in response to an Intervening Event if the Company Board has determined in good faith, after consultation with its independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that prior to taking such action, (x) the Company Board has given Parent at least three (3) business days’ prior written notice of its intention to take such action and a description of the Intervening Event, (y) the Company has negotiated, and has caused its 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, the Financing Letters and the Guaranty in such a manner that would obviate the need for taking such action as a result of an Intervening Event and (z) following the end of such notice period, the Company Board shall use commercially reasonable efforts have considered in good faith any revisions to this Agreement, the Financing Letters and the 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 Recommendation in response to an Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law.
(it being understood f) Nothing in this Section 6.2 shall prohibit the Company or the Company Board from (i) making any disclosure to the holders of Company Shares if the Company Board determines in good faith that the failure to make such efforts disclosure would create a material risk of a breach by the Company Board of its fiduciary duties to holders of the Company Shares, (ii) taking and disclosing to the stockholders of the Company 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 (iii) making any “stop, look and listen” communication to holders of Company Shares pursuant to Rule 14d-9(f) under the Exchange Act, provided, however, that clauses (i) and (ii) of this Section 6.2(f) shall not include an obligation to commence litigationlimit or otherwise affect the obligations of the Company and the Company Board and the rights of Merger Sub and Parent under Sections 6.2(d) to enforce the employee non-solicit/no-hire provisions of and (e) and Article VIII.
(g) As used in this Agreement, “Takeover Proposal” shall mean any confidentiality agreement entered into with inquiry, proposal or offer from any Person whether prior (other than Parent and its Subsidiaries) or “group” (within the meaning of Section 13(d) of the Exchange Act) relating to, on in a single transaction or after the date series of this Agreement and the provision thereof requiring the other party thereto to keep confidential related transactions, any proprietary, confidential information about (A) acquisition of assets of the Company obtained by and its Subsidiaries equal to 20% or more of the Company’s consolidated assets or to which 20% or more of the Company’s revenues or earnings on a consolidated basis are attributable (including a sale of either the Company’s Fine Chemicals business segment or the Company’s Specialty Chemicals business segment, in either case, as a going concern, however such sale is structured), (B) acquisition of 20% or more of the outstanding Company Shares, (C) tender offer or exchange offer that if consummated would result in any Person pursuant to such confidentiality agreement beneficially owning 20% or more of the outstanding Company Shares, (it being understood that D) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company may provide or (E) any consent combination of the foregoing types of transactions if the sum of the percentage of consolidated assets, consolidated revenues or earnings and grant any approval contemplated by any such confidentiality agreement)Company Shares involved is 20% or more; in each case, other than the Transactions.
Appears in 1 contract
Solicitation; Change in Recommendation. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. (New York City time) on the 51st day following the date of this Agreement (the “No-Shop Period Start Date”), the Company and its Subsidiaries and their respective officers, directors, employees, agents, advisors and other representatives (such Persons, together with the Subsidiaries of the Company, collectively, the “Company Representatives”) shall have the right to: (i) initiate, solicit, facilitate and encourage Takeover Proposals, including by way of providing access to non-public information to any other Person or group of Persons pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Parent and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available to any Person given such access which was not previously made available to Parent and Merger Sub; and (ii) enter into and maintain or continue discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any inquiries, proposals, discussions or negotiations regarding a Takeover Proposal. For purposes of this Agreement, “Acceptable Confidentiality Agreement” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal). From the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIIIIX, the Company shall use commercially reasonable efforts (it being understood such efforts do not include an obligation to commence litigation) to enforce the employee non-solicit/no-hire provisions of any confidentiality agreement entered into with any Person whether prior to, on or after the date of this Agreement and the provision thereof requiring the other party thereto to keep confidential any proprietary, confidential information about the Company obtained by such Person pursuant to such confidentiality agreement (it being understood that the Company may provide any consent and grant any approval contemplated by any such confidentiality agreement).
Appears in 1 contract
Samples: Merger Agreement (First Data Corp)
