Common use of Solicitation of Acquisition Proposals Clause in Contracts

Solicitation of Acquisition Proposals. Under the Merger Agreement, Instron is prohibited from authorizing or permitting any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it, to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes a proposed or actual (A) merger, consolidation or similar transaction involving Instron, (B) sale, lease or other disposition, directly or indirectly, of any assets of Instron or its subsidiaries representing 15% or more of the consolidated assets of Instron and its subsidiaries, (C) issue, sale or other disposition by Instron of securities representing 15% or more of the votes associated with the outstanding securities of Instron, (D) tender offer or exchange offer in which any person or group shall acquire beneficial ownership, or the right to acquire beneficial ownership, of 15% or more of the outstanding shares of Instron Common Stock, or (E) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with respect to Instron (an "Acquisition Proposal"), or (ii) participate in any discussions or negotiations regarding an Acquisition Proposal; provided, however, that at any time prior to the approval of the Merger Agreement by the Instron stockholders, if Instron receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of the foregoing restrictions, Instron may furnish non-public information to and participate in negotiations with the third party making the Acquisition Proposal if (X) the Instron Board determines based on the advice of independent legal counsel that failure to do so would be reasonably likely to constitute a breach of its fiduciary duties to the Instron stockholders under applicable law, and (Y) the Instron Board determines that such Acquisition Proposal is reasonably likely to lead to an Acquisition Proposal that the Instron Board determines, on the advice of its financial advisor, is more favorable to the Instron stockholders from a financial point of view than the Transactions (a "Superior Proposal"). Notwithstanding the foregoing, Instron shall, prior to furnishing any non-public information with respect to Instron and its subsidiaries to such third party, enter into a confidentiality agreement with such third party on terms no less favorable than those in the confidentiality agreement executed by Instron and Kirtland. Instron shall promptly notify (but in any event within two calendar days) MergerCo of Instron's first receipt of a written Acquisition Proposal by such third party and of the material terms and conditions thereof. Instron generally shall have no duty to notify or update Kirtland or MergerCo on the status of discussions or negotiations (including the status of such Acquisition Proposal or any amendments or proposed amendments thereto) between Instron and such third party. The Merger Agreement also provides that at any time prior to the approval of the Merger Agreement by the Instron stockholders, the Instron Board may (i) withdraw or modify in a manner material and adverse to Kirtland or MergerCo its approval or recommendation of the Merger Agreement or the Merger, (ii) approve or recommend an Acquisition Proposal to its stockholders or (iii) cause Instron to enter into any definitive acquisition agreement with respect to an Acquisition Proposal, in each such case if (A) the Instron Board determines based on the advice of independent legal counsel that failure to take such action would be reasonably likely to constitute a breach of its fiduciary duties to the Instron stockholders under applicable law, and (B) the Instron Board determines based on the advice of its financial advisors that such Acquisition Proposal constitutes a Superior Proposal.