Superior Proposals. (a) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal. (b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal. (c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal. (d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless: (i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal; (ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor; (iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and (iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise). (e) For purposes of this Agreement:
Appears in 3 contracts
Sources: Combined Credit Agreements (Quicksilver Resources Inc), Purchase Agreement (Crestwood Holdings LLC), Purchase Agreement (Quicksilver Resources Inc)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in Section 5.04(b6.3(b), neither Seller nor any from the No-Shop Period Start Date until the Offer Acceptance Time, in response to a bona fide written Acquisition Proposal that did not result from a breach of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Personobligations set forth in Section 6.3(b), (i) solicitthe Company may, initiate directly or knowingly take indirectly, through one or more of their Representatives (including the Advisor), contact the Person or group of Persons making such Acquisition Proposal solely to clarify any action ambiguous terms and conditions thereof so as to facilitate determine whether such Acquisition Proposal constitutes, or encourage the submission of any Acquisition would reasonably be expected to constitute, a Superior Proposal, and (ii) enter into the Company may, upon a good faith determination by the Company Board (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, participate or engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to any Person or its Representatives that has made or delivered to the Company such Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives, prospective debt and equity financing sources and/or their respective Representatives) with such Acquisition Proposal (in each case, if requested by such Person); provided, that, prior to taking any action described in this Section 5.04(b6.3(c)(ii), subject to the requirements set forth Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal; provided, Seller mayhowever, directly or indirectly through its Representatives, subject that (x) the Company will substantially concurrently provide to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources given such access in connection with the actions permitted by this Section 6.3(c)(ii) that was not previously made available to Parent and (ivy) subject the Company Group shall not provide (and shall not permit any of their respective Representatives to compliance provide) any competitively sensitive non-public information to any Person who is or whose Affiliates are a competitor of the Company Group in connection with the procedures set forth in actions permitted by this Section 5.04(c) and (d) and Section 11.01(d6.3(c)(ii), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto except in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided customary “clean room” or other similar procedures designed to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying manage the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions disclosure of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)competitively sensitive information.
(e) For purposes of this Agreement:
Appears in 3 contracts
Sources: Merger Agreement (United Rentals, Inc.), Agreement and Plan of Merger (H&E Equipment Services, Inc.), Merger Agreement (United Rentals North America Inc)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in Section 5.04(b6.3(b), neither Seller nor any from the date hereof until the Offer Acceptance Time, solely in response to a bona fide written Acquisition Proposal that did not result from a breach of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Personobligations set forth in Section 6.3(b), (i) solicitthe Company may, initiate directly or knowingly take indirectly, through one or more of their Representatives (including the Advisor), contact the Person or group of Persons making such Acquisition Proposal solely to clarify any action ambiguous terms and conditions thereof so as to facilitate determine whether such Acquisition Proposal constitutes, or encourage the submission of any Acquisition would reasonably be expected to constitute, a Superior Proposal, and (ii) enter into the Company may, upon a good faith determination by the Company Board (after consultation with its financial advisor and outside legal counsel) that the failure to do so would be or would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, participate or engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to any Person or its Representatives that has made or delivered to the Company such Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives, prospective debt and equity financing sources and/or their respective Representatives) with such Acquisition Proposal (in each case, if requested by such Person); provided, that, prior to taking any action described in this Section 5.04(b6.3(c)(ii), subject to the requirements set forth Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal; provided, Seller mayhowever, directly or indirectly through its Representatives, subject that (x) the Company will substantially concurrently provide to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources given such access in connection with the actions permitted by this Section 6.3(c)(ii) that was not previously made available to Parent and (ivy) subject the Company Group shall not provide (and shall not permit any of their respective Representatives to compliance provide) any competitively sensitive non-public information to any Person who is or whose Affiliates are a competitor of the Company Group in connection with the procedures set forth in actions permitted by this Section 5.04(c) and (d) and Section 11.01(d6.3(c)(ii), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto except in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided customary “clean room” or other similar procedures designed to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying manage the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions disclosure of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)competitively sensitive information.
(e) For purposes of this Agreement:
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (H&E Equipment Services, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.1, from the date hereof until the Company’s receipt of the Company Shareholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly indirectly, or through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company, its Subsidiaries or the Securities Affiliates to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any Personnel, of the Sold Entities toCompany, its Subsidiaries or otherwise cooperate Affiliates, in each case pursuant to and subject to the entry into a customary confidentiality agreement containing confidentiality terms no less restrictive in any way withmaterial respect than the terms of the Confidentiality Agreement, to any Third Party Person or its Representatives that is seeking has made or delivered to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an the Company a bona fide Acquisition Proposal after the date hereof that did not result from any breach of Section 5.1(a) (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(bany breach that is immaterial in scope and effect); provided, subject to the requirements set forth in such Section) or (iv) waivehowever, terminatethat, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to taking any such actions, the date of this Agreement Company Board (or a committee thereof) has determined in good faith (after consultation with respect to any Acquisition Proposal.
(bits financial advisor and outside legal counsel) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written that such Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.1(b) would be inconsistent with its fiduciary duties under applicable Law; and after providing written notice provided further that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating concerning the Company, its Subsidiaries or Affiliates that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Third Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal Parent prior to or substantially concurrently (but in connection with such Acquisition Proposal (to no event later than 24 hours after) the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the such Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 3 contracts
Sources: Merger Agreement (Kimball International Inc), Merger Agreement (Kimball International Inc), Merger Agreement (Hni Corp)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary contained in this Agreement, if at any time from and after the date hereof and prior to obtaining the Company Stockholder Approval, the Company receives an unsolicited written Company Takeover Proposal that is not withdrawn from any Person that did not result from a material breach of Section 5.04(b6.4(a), neither Seller nor any and if the Company Board (after considering the recommendation of its subsidiaries (including the Selling SubsidiariesCompany Special Committee) shallhas determined in good faith, after consultation with the Company’s independent financial advisor and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Personoutside legal counsel, (i) solicitthat such Company Takeover Proposal is bona fide and constitutes or could reasonably be expected to lead to a Company Superior Proposal, initiate or knowingly and (ii) failure to take any action the actions set forth in clauses (A) and (B) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, in response to facilitate or encourage the submission of any Acquisition such Company Takeover Proposal, (iiA) enter into or participate in any discussions or negotiations withfurnish, furnish any pursuant to an Acceptable Confidentiality Agreement, information relating (including non-public information) with respect to the Sold Entities or the Securities or Company and its Subsidiaries and afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany or any of its Subsidiaries to the Person that has made such written Company Takeover Proposal and its Representatives (provided that the Company shall, prior to or concurrently with the delivery to such Person, provide to Parent any information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided to Parent) and (B) engage in or otherwise cooperate participate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal; provided that the Company and its Representatives may contact any Third Party conducted prior to the date of this Agreement Person in writing (with a request that any response from such Person is in writing) with respect to a Company Takeover Proposal to clarify any Acquisition Proposal.
ambiguous terms and conditions thereof which are necessary to determine whether the Company Takeover Proposal constitutes a Company Superior Proposal (bwithout the Company Board (or any committee thereof, including the Company Special Committee) Notwithstanding Section 5.04(a), at any time from being required to make the date of this Agreement until consummation of determination in the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, foregoing clauses (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii)). The Company shall promptly (and in any event within twenty-four (24) furnish to such Third Party or its Representatives or financing sources non-public information relating to hours) notify Parent in writing if the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with Company Board makes the procedures determinations set forth in this Section 5.04(c6.4(b), and shall not take any of the actions set forth in clauses (A) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during prior to providing such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)notice.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Battalion Oil Corp), Merger Agreement (Battalion Oil Corp)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one (1) or more of its subsidiaries their respective Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any information (including non-public information and data) relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other information (including non-public information and data), or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, an the Company a bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principleeach case, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” or similar obligation material breach of Section 5.3(b); provided, that, the Company and its Representatives may contact any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement Person with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written an Acquisition Proposal made after to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller Acquisition Proposal constitutes or is reasonably believes would be expected likely to lead to a Superior ProposalProposal (without the Company Board being required to make the determination in the following proviso), Seller mayit being agreed that if the Company Board receives any clarifications from such Third Person, directly the Proposal Notice Period will not be deemed commenced until such clarifications are provided to Parent; provided, however, that, except as permitted by the immediately preceding proviso, the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject to compliance with this Section 5.04 financial advisor and after providing written notice to Buyer of its intention to take any such actions, outside legal counsel) that (i) negotiate the terms of, such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish the failure to such Third Party or take the actions contemplated by this Section 5.3(c) would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, further, however, that the Company will provide to Parent and its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently (but in no event later than forty-eight (48) hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (STAMPS.COM Inc)
Superior Proposals. (a) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating Notwithstanding anything to the Sold Entities or the Securities or afford access to the businesscontrary in this Agreement, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect Effective Time, Parent may, to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of extent the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that Special Committee or the Board of Directors of Seller reasonably believes Parent by a majority disinterested vote determines, in the good faith exercise of its fiduciary duties, that it would be expected in the best interests of Parent or its shareholders to lead to a Superior Proposaldo so, Seller may, directly participate in discussion or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms ofnegotiations with, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating information, and afford access to the Sold Entities pursuant properties, books, records, officers, employees and representatives of Parent to an Acceptable Confidentiality Agreementany Person, (iii) engage entity or group after such Person, entity or group has delivered to Parent in negotiations writing, a proposal to acquire all or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with a portion of Parent or Parent's assets or business, which the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that Special Committee or the Board of Directors of Seller reasonably determines constitutes Parent by a majority disinterested vote determines, in its good faith reasonable judgment, if consummated would be more favorable to Parent or its shareholders than the transactions contemplated by this Agreement (a "Superior Proposal"). In the ----------------- event Parent receives a Superior Proposal.
, nothing contained in this Agreement will prevent the Special Committee from recommending and the Board of Directors of Parent from executing or entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to its shareholders, if the Special Committee or the Board of Directors of Parent by a majority disinterested vote determines in good faith that it is appropriate to do so; in such case, the Special Committee and the Board of Directors of Parent may withdraw, modify or refrain from making its recommendation of the Merger, and, to the extent it does so, Parent may refrain from calling, providing notice of and holding the Parent Shareholders Meeting to adopt this Agreement and from soliciting proxies or consents to secure the vote or written consent of its shareholders to adopt this Agreement and may terminate this Agreement; provided however that Parent shall (ci) Seller will as promptly as practicable advise Buyer orally (and in writing no event later than 24 hours after receipt thereof) notify the Company that the Special Committee or Parent's Board of the existence of any proposal or inquiry Directors, as applicable, has received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition a Superior Proposal, specifying the material terms and conditions of any such proposal or inquiry or Acquisition Superior Proposal (including any changes thereto) and the identity of identifying the Person making such Superior Proposal and (ii) terminate this Agreement by written notice to the Company provided no sooner than 48 hours after the Company's receipt of a copy of such Superior Proposal (or a description of the material terms and conditions thereof). Nothing contained in this Section 6.12 ------------ (a) shall prevent the Special Committee or the Board of Directors of Parent from --- taking and disclosing to Parent's shareholders a position as required by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any tender or exchange offer, provided that such proposaldisclosure states that no action will be taken by the Special Committee or the Board of Directors of the Company in violation of this Section 6.12. Notwithstanding anything to the contrary in this ------------ Agreement, inquiry or Acquisition prior to the Effective Time, Parent may, in connection with a possible Superior Proposal., refer any third party to this Section 6.12 and make ------------ a copy of this Section 6.12 available to a third party. ------------
(db) Notwithstanding anything herein to In the contrary, Seller shall event that the Merger is not be entitled to exercise its right to terminate consummated by virtue of the termination of this Agreement pursuant to Section 11.01(d6.12(a)(iii) unless:
or Section 8.1(c) -------------------- -------------- hereof, Parent shall (i) Seller has received a bona fide written Acquisition Proposal made after pay to the date Company $7,500,000 and (ii) pay all transaction costs and expenses (including legal, accounting and other professional fees and expenses and other fees described in Section 4.19 hereof), ------------ incurred by the Company in connection with the negotiation, execution, and performance of this Agreement that was unsolicited and did not otherwise result from a breach the consummation of Section 5.04(a) that the transactions contemplated hereby. Such payment shall be by wire transfer of immediately available funds to an account designated by the Company promptly after the Board of Directors of Seller (whether at Parent has determined to recommend the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Digital Generation Systems Inc), Merger Agreement (Ginsburg Scott K)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b)5.3, neither Seller nor any from the date hereof until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallRequisite Stockholder Approval, the Company and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Special Committee may, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicitcontact the Person or group of Persons making such Acquisition Proposal to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes, initiate or knowingly take any action could reasonably be expected to facilitate or encourage the submission of any Acquisition result in, a Superior Proposal, (ii) enter into participate or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, the Company an Acquisition ProposalProposal after the date hereof, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a5.3(a); provided, however, that prior thereto, the Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) and that the Board of Directors of Seller (i) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish the failure to such Third Party or take the actions contemplated by this Section 5.3(b) would be inconsistent with its Representatives or financing sources fiduciary duties pursuant to applicable law; and provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Parent any non-public information relating concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent; and provided further, however, that if any such Person or its Representatives is a competitor of the Sold Entities pursuant Company Group, the Company Group shall not provide any information that in the good faith determination of the Company constitutes commercially sensitive non-public information to an Acceptable Confidentiality Agreement, (iii) engage such Person in negotiations or discussions connection with any Third Party and its Representatives and financing sources and (ivactions permitted by this Section 5.3(b) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto other than in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided “clean room” or other similar procedures designed to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take limit any potential adverse effect on the Company from sharing such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)information.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Restaurant Brands International Limited Partnership), Merger Agreement (Carrols Restaurant Group, Inc.)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b5.3(c), neither Seller nor any from the No-Shop Period Start Date until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallCompany Stockholder Approval, and Seller shall cause its subsidiaries the Company and its Subsidiaries and their officers, directors, employees, investment bankers, attorneys, accountants, consultants the Company Board (or other agents or advisors (“Representatives”a committee thereof) to notmay, directly or indirectly indirectly, through another Personone or more of their Representatives, (i) solicitcontact any Third Party in writing (with a request that any response from such Third Party is in writing) with respect to an Acquisition Proposal submitted by such Third Party solely to clarify any ambiguous terms and conditions thereof that are necessary to determine whether such Acquisition Proposal constitutes or would reasonably be likely to lead to a Superior Proposal (without the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) being required to make the determination in the following clause (ii)(y)), initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, and (ii) enter into participate or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any way with, any Third Party Person or its Representatives that is seeking has made or delivered to make, or has made, the Company an Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case (x) with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” material breach of Section 5.3(b) and (y) only if the Company Board (or similar obligation a duly authorized committee thereof acting with the full force and authority of the Company Board) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that (1) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably likely lead to a Superior Proposal and (2) the failure to enter into discussions regarding such Acquisition Proposal would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, however, that (A) the Company shall provide to Parent and its Representatives any Third Party. Seller shallnon-public information that is provided to any Person or its Representatives given such access that was not previously made available to Parent prior to or substantially concurrently (but in no event later than twenty-four (24) hours after) the time it is provided to such Person; (B) the Company and its Subsidiaries shall not pay, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and agree to pay or cause to be terminated all existing paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Acquisition Proposals or any Inquiries, discussions or negotiations with any Third Party conducted prior to the date of this Agreement requests with respect to or the making any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement proposal or offer that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller constitutes or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, in each case, without the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions consent of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior ProposalParent; and (C) at any competitively sensitive information or data provided to any such Person or group or their Representatives shall be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data, on the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues same basis made available to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) Parent or otherwise)its Representatives.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Patriot Transportation Holding, Inc.), Merger Agreement (Patriot Transportation Holding, Inc.)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3 (a) Subject but subject to the provisos in this Section 5.04(b5.3(b)), neither Seller nor any prior to the Company’s receipt of the Requisite Stockholder Approval, in response to an unsolicited bona fide written Acquisition Proposal received after the date of this Agreement, the Company (acting on the recommendation of the Special Committee) may, or may authorize its subsidiaries (including the Selling Subsidiaries) shallRepresentatives to, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in Company such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written an Acquisition Proposal made after the date of this Agreement that was unsolicited Agreement, and did not otherwise result from a breach of Section 5.04(afacilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) and with such Acquisition Proposal (in each case, if requested by such Person); provided, however, that the Board of Directors of Seller Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through and the Special Committee has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice to Buyer provided, further, however, that the Company will promptly (and in any event within twenty-four (24) hours of its intention to take any provision of such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish information to such Third Party Person or its Representatives or financing sources Representative) make available to Parent any non-public information relating to concerning the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller Company or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement Subsidiaries that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller it has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer any such Person or its Representatives that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or was not previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (R1 RCM Inc. /DE), Merger Agreement (R1 RCM Inc. /DE)
Superior Proposals. (a) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating Notwithstanding anything to the Sold Entities or the Securities or afford access to the businesscontrary contained in this Agreement, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), if at any time from and after the date of this Agreement until consummation of hereof and prior to obtaining the ClosingCompany Shareholder Approval, if Seller the Company receives a bona fide written Acquisition Company Takeover Proposal made after the date of this Agreement from any Person that was unsolicited and did not otherwise result from a breach of Section 5.04(a6.4(a) (other than any breach that is both immaterial and unintentional) and if the Company Board determines in good faith, in its reasonable discretion (x) after consultation with its independent financial advisors and outside legal counsel, that the Board of Directors of Seller such Company Takeover Proposal constitutes or would reasonably believes would be expected to lead to a Company Superior Proposal, Seller and (y) after consultation with its outside legal counsel, that the failure to take the actions set forth in clauses (A) and (B) below would be reasonably expected to be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly through its Representatives, subject in response to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actionsCompany Takeover Proposal, (iA) negotiate the terms offurnish, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, information (iiiincluding non-public information) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to the Company and its Subsidiaries to the Person that has made such Acquisition written Company Takeover Proposal and its Representatives; provided that the Board of Directors of Seller reasonably determines constitutes competitively sensitive information or data provided to any such Person who is a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing competitor of the existence of any proposal or inquiry received after the date of this Agreement by Seller Company or any of its subsidiaries Subsidiaries will only be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data, which procedures shall be consistent in all material respects with the Company’s practices in dealing with the disclosures of such information to Parent or its Representatives (provided, that (I) the Company shall, prior to or their substantially concurrently with the delivery to such Person, provide to Parent any material non-public information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided to Parent and (II) the Company shall provide Parent a non-redacted copy of each confidentiality agreement the Company has executed in accordance with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes theretothis Section 6.4) and the identity of (B) engage in or otherwise participate in discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal. It is understood and agreed that any such proposalcontacts, inquiry disclosures, discussions or Acquisition Proposal.
(dnegotiations permitted under this Section 6.4(b) Notwithstanding anything herein to and conducted in accordance with the contraryterms of this Section 6.4 shall not, Seller shall not be entitled to exercise its right in and of itself, constitute a Change of Recommendation or constitute a basis for Parent to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise8.1(d)(ii).
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the No-Shop Period Start Date (aor, with respect to an Excluded Party, from the date hereof) Subject to Section 5.04(b)until the Company’s receipt of the Requisite Stockholder Approval, neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, Company and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Special Committee may, directly or indirectly through another Personone or more of their Representatives (including the Advisors), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, the Company an Acquisition ProposalProposal after the No-Shop Period Start Date (or, with respect to an Excluded Party, after the date hereof), and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives and financing sources) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.3(b); provided, however, that the Board of Directors of Seller Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly or indirectly through and the Special Committee has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Vista Equity Partners Fund Viii, L.P.), Merger Agreement (Duck Creek Technologies, Inc.)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary contained in Sections 7.7.1 and 7.7.2 or elsewhere in this Agreement, prior to the Effective Time, the Company may participate in discussions or negotiations with, and furnish non-public information, and afford access to the properties, books, records, officers, employees and representatives of the Company to any Person, entity or group if such Person, entity or group has delivered to the Company, prior to the date of the Company's meeting of shareholders or action pursuant to Section 5.04(b)1110 of the CGCL, neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shallas applicable, and Seller in writing, an Acquisition Proposal which the Special Committee in its reasonable judgment determines if consummated would be more favorable, from a financial point of view, to the Company's shareholders than the transactions contemplated by this Agreement, which determination shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, be made only after the Special Committee (i) solicitreceives a written opinion of its legal counsel that the Special Committee would breach its fiduciary duties if it did not accept the Acquisition Proposal and (ii) a written opinion of the Company's Financial Adviser to the effect that the Acquisition Proposal is superior, initiate from a financial point of view, to the Company's shareholders than the transactions contemplated by this Agreement (an Acquisition Proposal satisfying such conditions constituting a "Superior Proposal"). In the event the company receives a Superior Proposal, nothing contained in this Agreement (but subject to this Section 7.7.3) will prevent the Special Committee from, on behalf of the Board of Directors, executing or knowingly take entering into an agreement relating to such Superior Proposal and recommending such Superior Proposal to the shareholders of the Company, if the Special Committee determines in accordance with the preceding sentence that its fiduciary duties require it to do so; in such case, the Special Committee may withdraw, modify, or refrain from makings its recommendation of the transactions contemplated by this Agreement; provided, however, that the Special Committee shall (i) promptly notify Purchaser, and in any action event within 24 hours, if any Acquisition Proposal is received by, any such information is requested from, or any such negotiations or discussions are sought to facilitate be initiated or encourage continued with, the submission Company, indicating, in connection with such notice, the name of any such person and the material terms of such Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records provide Purchaser at least 48 hours prior written notice of the Sold Entities toSpecial Committee's intention, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter on behalf of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected the Company, to lead execute or enter into an agreement relating to a such Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with Proposal and (iii) terminate this Section 5.04 and after providing Agreement by written notice to Buyer Purchaser provided no sooner than 48 hours after Purchaser's receipt of its intention to take any a copy of such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Digital Link Corp), Merger Agreement (DLZ Corp)
Superior Proposals. In the event that any Person or Group submits to the Company (aand does not withdraw) Subject an unsolicited, written, bona fide Acquisition Proposal prior to Section 5.04(b), neither Seller nor any the consummation of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notOffer that did not result, directly or indirectly through another Personindirectly, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a6.1(a) and the Company Board (or any duly authorized committee thereof) concludes in good faith (after consultation with its outside legal counsel and a financial advisor of national standing) that such Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal (provided that the Board of Directors of Seller Company and its Representatives may contact such Person or Group prior to such conclusion to clarify the terms and conditions thereof and solely to determine whether such Acquisition Proposal constitutes or would reasonably believes would be expected to lead to a Superior Proposal), Seller maythen, directly or indirectly through its Representativesnotwithstanding anything to the contrary contained in Section 6.1(a), subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, the Company may (i) negotiate enter into discussions or negotiations with such Person or Group and parties to the terms of, Tender Agreements regarding such Acquisition Proposal and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish deliver or make available to such Third Party Person or its Representatives or financing sources Group non-public information relating regarding the Company and the Subsidiaries and afford access to the Sold Entities pursuant business, employees, officers, contracts, properties, assets, books and records of the Company and the Subsidiaries to the Person or Group who made such Acquisition Proposal and such Person’s or Group’s Representatives; provided that, in each such case, (A) the Company Board shall have concluded in good faith (after consultation with its outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary obligations to the stockholders of the Company under Applicable Law, (B) prior to making available to any such Person any material non-public information, the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement, (iiiC) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to Company shall provide Parent written notice of such Acquisition Proposal that the Board actions within one Business Day of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of taking any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
action in clause (i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; above and (CD) at prior to or substantially contemporaneously with delivering or making available any such non-public information to such Person, the end of Company shall deliver or make available such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues non-public information to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (IntraLinks Holdings, Inc.), Merger Agreement (Synchronoss Technologies Inc)
Superior Proposals. Notwithstanding anything to the contrary contained in this Agreement, if at any time from and after the date hereof and prior to obtaining the Company Stockholder Approval, the Company receives a written Company Takeover Proposal that is not withdrawn from any Person (a) Subject and, if such written Company Takeover Proposal is received after the date that Parent delivers Evidence of Funding to the Company pursuant to Section 5.04(b6.10(a)(ix), neither Seller nor any such written Company Takeover Proposal did not result from a material breach of its subsidiaries (including the Selling Subsidiaries) shallSection 6.4(a)(ii)), and Seller shall cause its subsidiaries if the Company Board (after considering the recommendation of the Company Special Committee) has determined in good faith, after consultation with the Company’s independent financial advisor and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Personoutside legal counsel, (i) solicitthat such Company Takeover Proposal is bona fide and constitutes or could reasonably be expected to lead to a Company Superior Proposal, initiate or knowingly and (ii) failure to take any action the actions set forth in clauses (A) and (B) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, in response to facilitate or encourage the submission of any Acquisition such Company Takeover Proposal, (iiA) enter into or participate in any discussions or negotiations withfurnish, furnish any pursuant to an Acceptable Confidentiality Agreement, information relating (including non-public information) with respect to the Sold Entities or the Securities or Company and its Subsidiaries and afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany or any of its Subsidiaries to the Person that has made such written Company Takeover Proposal and its Representatives (provided that the Company shall, prior to or concurrently with the delivery to such Person, provide to Parent any information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided to Parent) and (B) engage in or otherwise cooperate participate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal; provided that the Company and its Representatives may contact any Third Party conducted prior to the date of this Agreement Person in writing (with a request that any response from such Person is in writing) with respect to a Company Takeover Proposal to clarify any Acquisition Proposal.
ambiguous terms and conditions thereof which are necessary to determine whether the Company Takeover Proposal constitutes a Company Superior Proposal (bwithout the Company Board (or any committee thereof, including the Company Special Committee) Notwithstanding Section 5.04(a), at any time from being required to make the date of this Agreement until consummation of determination in the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, foregoing clauses (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii)). The Company shall promptly (and in any event within twenty-four (24) furnish to such Third Party or its Representatives or financing sources non-public information relating to hours) notify Parent in writing if the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with Company Board makes the procedures determinations set forth in this Section 5.04(c6.4(b), and shall not take any of the actions set forth in clauses (A) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during prior to providing such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)notice.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Battalion Oil Corp), Agreement and Plan of Merger (Battalion Oil Corp)
Superior Proposals. In the event that any Person or Group submits to the Company (aand does not withdraw) Subject a written, bona fide Acquisition Proposal that the Company Board concludes in good faith (after consultation with its outside legal counsel and a financial advisor of national standing) is, or could reasonably be expected to lead to, a Superior Proposal, then, notwithstanding anything to the contrary in Section 5.04(b5.3(a), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shallCompany may, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Personso long as the Company Stockholder Approval has not yet been obtained, (i) solicit, initiate enter into discussions with such Person or knowingly take any action to facilitate or encourage the submission of any Group regarding such Acquisition Proposal, Proposal and (ii) enter into deliver or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish make available to such Third Party or its Representatives or financing sources Person non-public information relating to regarding the Sold Entities pursuant to an Acceptable Confidentiality AgreementCompany and its Subsidiaries; provided that, in each such case, the Company, its Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, its Subsidiaries or any Company Representative shall have violated any of the provisions of this Section 5.3 in any material respect, (iiiB) engage the Company Board first shall have concluded in negotiations or discussions good faith (after consultation with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(aoutside legal counsel) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends failure to take such action and specifying would be inconsistent with its fiduciary duties under Applicable Legal Requirements, (C) prior to making available to any such Person any material non-public information, the reasons therefor;
Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (iii) Seller has a copy of which executed Acceptable Confidentiality Agreement shall be provided to Buyer all material documentation Parent, for informational purposes only, within forty-eight (48) hours of its execution) and (D) prior to or contemporaneously with delivering or making available any such non-public information to such Person, the Company shall have delivered or made available such non-public information to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal Parent (to the extent such documentation and non-public information has not previously been previously provided delivered or made available by the Company to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwiseParent).
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Splunk Inc), Merger Agreement (Cisco Systems, Inc.)
Superior Proposals. (a) Subject to Section 5.04(b)If, neither Seller nor at any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted time prior to the date that the Company Shareholder Approval is obtained, the Company receives an unsolicited, written, bona fide Acquisition Proposal that the board of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation directors of the ClosingCompany determines in good faith (after consultation with the Company’s outside legal and financial advisors of national standing) is, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller or would reasonably believes would be expected to lead to to, a Superior Proposal, Seller maythen, directly or indirectly through its Representatives, subject notwithstanding anything to compliance with this the contrary contained in Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”6.4(a), the Company may (iiA) furnish enter into discussions with any Person making such an Acquisition Proposal and (B) deliver or make available to such Third Party or its Representatives or financing sources Person non-public information relating regarding the Company and the Company Subsidiaries (provided that substantially concurrently (and in any event within 24 hours) the Company delivers or makes available to Parent such information to the Sold Entities pursuant extent such information was not previously made available to an Acceptable Confidentiality AgreementParent); provided, (iii) engage that, in negotiations or discussions each such case, the Company, the Company Subsidiaries and the Company Representatives shall have complied with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing each of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unlessfollowing:
(i) Seller has received a bona fide written Acquisition Proposal made after none of the date Company, the Company Subsidiaries and their respective Representatives shall have violated (other than immaterial breaches) any of the provisions of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal6.4;
(ii) Seller has provided (x) the board of directors of the Company first shall have determined in good faith (after consultation with its outside legal counsel) that the failure to Buyer three Business Days’ prior deliver or make available such information or engage in such discussions would be reasonably likely to result in a violation of its fiduciary obligations to the Company and the Company’s shareholders under Applicable Law, and (y) the Company provides written notice to Parent immediately after any such determination by the board of directors of the Company and before taking any of the actions described in (a “Notice”A) advising Buyer that Seller intends to take such action and specifying the reasons therefor;(B) of this sentence; and
(iii) Seller has provided prior to Buyer all material documentation and information delivered delivering or made making available to any such Person any material non-public information, the Third Party making any Acquisition Proposal in connection with Company first shall have received from such Acquisition Proposal (Person an executed confidentiality agreement on terms no less favorable to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) Company than the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Confidentiality Agreement.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Numerex Corp /Pa/), Merger Agreement (Sierra Wireless Inc)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor any committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations withwith any Person or such Person’s Representatives, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to such Person or such Person’s Representatives, or afford access to the business, properties, assets, books books, records or records personnel, of the Sold Entities Company or any of its Subsidiaries to such Person or such Person’s Representatives pursuant to, or otherwise cooperate in any way witheach case, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject that the Company has executed with any Person that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide fide, written Acquisition Proposal that did not result from a breach, in any material respect, of Section 5.3(a) and that was made or delivered by such Person after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(afacilitate such Acquisition Proposal or assist such Person (and such Person’s Representatives and financing sources) and with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that the Company Board (or a committee thereof) has, prior to the Company first taking any of Directors of Seller the foregoing actions, determined in good faith (after consultation with its financial advisors and outside legal counsel) that such Acquisition Proposal (i) either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 Proposal and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends failure to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal actions in connection with such Acquisition Proposal (to would be inconsistent with its fiduciary duties under applicable Law; provided, that, the extent such documentation and information has not been previously provided to Buyer); and
(iv) Company shall (A) the Notice includes the terms provide to Parent and conditions of the Acquisition Proposal Merger Sub any non-public information or data that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment provided to any other material term of such Acquisition Proposal shall require a new Notice Person, that was not previously made available to Parent or Merger Sub prior to or substantially concurrently with the time it is provided to such Person, and a new three Business Day period); if necessary, the Company may provide such information in accordance with applicable Law and any applicable “clean team” or similar arrangement and (B) during such three promptly (and in any event within the earlier of (x) one (1) Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer or (y) 48 hours thereafter) following any determination of the Company Board made pursuant to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; the immediately preceding clauses (i) and (C) at the end ii), provide written notice to Parent of any such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result determination of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Company Board.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Haynes International Inc), Merger Agreement (Haynes International Inc)
Superior Proposals. (aNotwithstanding anything to the contrary set forth in Section 5.8(a) Subject but subject to compliance with the other provisions of this Section 5.04(b5.8(b), neither at any time prior to Seller’s receipt of the Requisite Stockholder Approval, Seller, its Subsidiaries and the Seller nor any of its subsidiaries Board (including the Selling Subsidiariesor a committee thereof) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly indirectly, through another Personone or more of its Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to Seller and/or its Subsidiaries (including the Sold Entities or the Securities Company and its Subsidiaries) to, or afford access to the business, properties, assets, books books, records or records of the Sold Entities toother non-public information, or otherwise cooperate in to any way withpersonnel, any Third Party that is seeking of Seller and/or its Subsidiaries (including the Company and its Subsidiaries) pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
Person (bor such Person’s Representatives, including prospective debt and equity financing sources and/or their respective Representatives) Notwithstanding Section 5.04(a)that has made, at any time from the date of this Agreement until consummation of the Closingrenewed, if furnished or delivered to Seller receives or its Representatives a bona fide written Acquisition Proposal made after the date execution and delivery of this Agreement that was unsolicited and did not otherwise directly or indirectly result from a breach of this Section 5.04(a) and 5.8; provided, that the Seller Board of Directors of Seller reasonably believes (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would be expected reasonably likely to lead to a Superior Proposal, and the Seller may, directly Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.8(b) would or would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; provided, further, however, that the Seller, the Company and after providing written notice each of their respective Representatives may contact any Person in writing (with a request that any response from such Person is in writing) with respect to Buyer of its intention an Acquisition Proposal solely to take clarify any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with ambiguous terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish thereof which are reasonably necessary to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (determine whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller constitutes or would be reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment likely to the financial terms or any material amendment lead to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day periodprovided, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes further, that such Acquisition Proposal continues Seller will provide to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant its Representatives any such non-public information that is provided to clause (B) any Person or otherwise)its Representatives given such access that was not previously made available to Buyer prior to or concurrently with the time it is provided to such Person.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Transaction Support Agreement (UpHealth, Inc.), Membership Interest Purchase Agreement (UpHealth, Inc.)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary contained in Section 5.04(b6.01(a), neither Seller nor if at any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted time prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date adoption of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
Required Company Stockholder Approval (i) Seller the Company has received a bona fide written Acquisition Proposal made after from a Third Party that was not solicited at any time following the date execution of this Agreement that was unsolicited and did not otherwise result arise from a breach of the obligations set forth in this Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
6.02 and (ii) Seller has provided the Company Board determines in good faith, after consultation with its independent financial advisor and outside legal counsel, that (A) such Acquisition Proposal constitutes, or would reasonably be expected to Buyer three Business Days’ prior written notice lead to, a Superior Proposal and (a “Notice”B) advising Buyer that Seller intends the failure to take any of the actions described in the following clauses (x), (y) or (z) would violate the directors’ fiduciary duties under Applicable Law, then the Company and its Representatives may (x) furnish non-public information, and afford access to the books, records, properties, assets, facilities and officers, employees and other personnel of the Acquired Companies, to such action Third Party and specifying its Affiliates and Representatives, (y) engage in discussions and negotiations with such Third Party and its Affiliates and Representatives with respect to the reasons therefor;
Acquisition Proposal, and (iiiz) Seller has otherwise facilitate such Acquisition Proposal or assist such Third Party (and its Affiliates, Representatives, prospective debt and equity financing sources or their respective Representatives) with such Acquisition Proposal, in each case, if requested by such Third Party; provided to Buyer all that any material documentation and non-public information delivered or concerning the Acquired Companies made available to the any Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (shall, to the extent not previously made available to Parent, be made available to Parent as promptly as reasonably practicable after it is made available to such documentation Third Party; provided, further, that the Company may not disclose any material non-public information regarding the Acquired Companies to such Person without the Company first entering into an Acceptable Confidentiality Agreement (if such Person is not already party to a confidentiality agreement with the Company). Notwithstanding anything to the contrary set forth in this Section 6.02 or elsewhere in this Agreement, the Company, its Subsidiaries and information has not been previously provided their Representatives may, in any event (without the Company Board having to Buyermake the determination in clause (ii) of the preceding sentence); and
(iv) , contact any Third Party to (A) the Notice includes seek to clarify and understand the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination any inquiry or proposal made by Seller (and that the Board of Directors of Seller such Third Party solely to determine whether such inquiry or proposal constitutes, or would reasonably determines constitutes be expected to lead to, a Superior Proposal) Proposal and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during inform such three Business Day periodThird Party that has made or, if requested by Buyerto the Knowledge of the Company, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such is considering making an Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at of the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms provisions of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Section 6.02.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Altus Power, Inc.), Merger Agreement (Altus Power, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, (ii) furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or (iii) afford access to the business, properties, assets, books books, records or records personnel, of the Sold Entities toCompany or any of its Subsidiaries, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, the case of clause (ii) and clause (iii) enter into), approve or resolve pursuant to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or such Person’s Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement Agreement, contact such Person to clarify the terms and conditions thereof and otherwise facilitate such Acquisition Proposal or assist such Person (and such Person’s Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise result from a breach of Section 5.04(a5.3(a) or this Section 5.3(b) (other than a de minimis breach), the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisors and that the Board of Directors of Seller outside legal counsel) either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 Proposal and after providing written notice to Buyer of its intention that failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law. Subject to applicable Law and any such actionsapplicable “clean team” or similar arrangement, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish Company shall provide to such Third Party or its Representatives or financing sources Parent any non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal data that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect is provided to any Acquisition Proposal, the material terms and conditions of any Person given such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent substantially concurrently with the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (CVS HEALTH Corp), Merger Agreement (Oak Street Health, Inc.)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b)5.3, neither Seller nor any until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallCompany Stockholder Approval, and Seller shall cause its subsidiaries the Company and its Subsidiaries and their officers, directors, employees, investment bankers, attorneys, accountants, consultants the Company Board (or other agents or advisors (“Representatives”a committee thereof) to notmay, directly or indirectly indirectly, through another Personone or more of their Representatives, (i) solicitcontact any Third Party in writing (with a request that any response from such Third Party is in writing) with respect to an Acquisition Proposal submitted by such Third Party solely to clarify any ambiguous terms and conditions thereof that are necessary to determine whether such Acquisition Proposal constitutes or would reasonably be likely to lead to a Superior Proposal (without the Company Board (or a duly authorized committee thereof acting with the full force and authority of the Company Board) being required to make the determination in the following clause (ii)(y)), initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, and (ii) enter into participate or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any way with, any Third Party Person or its Representatives that is seeking has made or delivered to make, or has made, the Company an Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case (x) with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” material breach of Section 5.3(a) and (y) only if the Company Board (or similar obligation a duly authorized committee thereof acting with the full force and authority of the Company Board) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that (1) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably likely lead to a Superior Proposal and (2) the failure to enter into discussions regarding such Acquisition Proposal would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, however, that (A) the Company shall provide to Parent and its Representatives any Third Party. Seller shallnon-public information that is provided to any Person or its Representatives given such access that was not previously made available to Parent prior to or substantially concurrently (but in no event later than twenty-four (24) hours after) the time it is provided to such Person; (B) the Company and its Subsidiaries shall not pay, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and agree to pay or cause to be terminated all existing paid or reimburse, agree to reimburse or cause to be reimbursed, the expenses of any such Person in connection with any Acquisition Proposals or any Inquiries, discussions or negotiations with any Third Party conducted prior to the date of this Agreement requests with respect to or the making any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement proposal or offer that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller constitutes or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, in each case, without the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions consent of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior ProposalParent; and (C) at any competitively sensitive information or data provided to any such Person or group or their Representatives shall be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or data, on the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues same basis made available to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) Parent or otherwise)its Representatives.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Usa Truck Inc), Merger Agreement (Usa Truck Inc)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.4, but subject to Section 5.04(b5.4(e), neither Seller nor any from the date of its subsidiaries this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (including the Selling Subsidiariesor a committee thereof) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b)any Person or its Representatives that has made, subject renewed or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide written Acquisition Proposal made after the date of this Agreement Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise the result from of a material breach of Section 5.04(a5.4(a); provided, that, the Company Board may take the foregoing actions only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel and that the Board of Directors of Seller financial advisors) (i) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 Proposal and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish the failure to take such Third Party or its Representatives or financing sources actions would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law; provided, further, that subject to applicable Law, the Company shall provide to Parent and Merger Sub any non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal data that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect is provided to any Acquisition Proposal, the material terms and conditions of any Person given such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent or Merger Sub prior to or substantially concurrently to (and within twenty-four (24) hours of) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Zymergen Inc.), Merger Agreement (Ginkgo Bioworks Holdings, Inc.)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary contained in Section 5.04(b6.4(a), neither Seller nor if at any time prior to obtaining the Company Shareholder Approval, the Company receives an unsolicited Company Takeover Proposal that is not withdrawn from any Person that did not result from a breach of its subsidiaries (including the Selling Subsidiaries) shallSection 6.4(a), and Seller shall cause if the Company Board determines in good faith, after consultation with its subsidiaries outside legal counsel and financial advisor, (x) that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Company Superior Proposal, and (y) failure to take the actions set forth in clauses (i) and (ii) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its and their officersRepresentatives may, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) in response to not, directly or indirectly through another Personsuch Company Takeover Proposal, (i) solicitfurnish, initiate pursuant to an Acceptable Confidentiality Agreement (a copy of which shall promptly be delivered by or knowingly take any action on behalf of the Company to facilitate or encourage Parent following the submission of any Acquisition Proposalexecution and delivery thereof), information (iiincluding non-public information) enter into or participate in any discussions or negotiations with, furnish any information relating with respect to the Sold Entities or the Securities or Company and its Subsidiaries and afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany or any of its Subsidiaries to the Person that has made such written Company Takeover Proposal and its Representatives, prospective debt and equity financing sources and/or their respective Representatives (provided that the Company shall, prior to or substantially concurrently with the delivery to such Person, provide to Parent any information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives, prospective debt and equity financing sources and/or their respective Representatives unless such information has been previously provided to Parent) and (ii) engage in or otherwise cooperate participate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives, prospective debt and equity financing sources and/or their respective Representatives regarding such Company Takeover Proposal; provided that the Company and its Representatives may contact any Third Party conducted prior to the date of this Agreement Person in writing (with a request that any response from such Person is in writing) with respect to a Company Takeover Proposal solely to clarify any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with ambiguous terms and conditions no less restrictive thereof which are necessary to determine whether the Company Takeover Proposal constitutes a Company Superior Proposal (without the Company Board being required to make the determination in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates foregoing clauses (an “Acceptable Confidentiality Agreement”), (iix) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (ivy)). The Company shall promptly (and in any event within thirty-six (36) subject to compliance with hours) notify Parent in writing if the procedures Company Board makes the determinations set forth in this Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise6.4(b).
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Meritor, Inc.)
Superior Proposals. (a) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating Notwithstanding anything to the Sold Entities or the Securities or afford access to the businesscontrary contained in this Agreement, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), if at any time from and after the date of this Agreement until consummation of No-Shop Period Start Date and prior to obtaining the ClosingCompany Stockholder Approval, if Seller the Company receives a bona fide written Acquisition Company Takeover Proposal made after the date of this Agreement that was unsolicited and is not withdrawn from any Person that did not otherwise result from a breach of Section 5.04(a6.4(b) (other than any breach that is both immaterial and unintentional), and if the Company Board determines in good faith, after consultation with its independent financial advisors and outside legal counsel, (x) that the Board of Directors of Seller such Company Takeover Proposal constitutes or would reasonably believes would be expected to lead to a Company Superior Proposal, Seller and (y) failure to take the actions set forth in clauses (A) and (B) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly through its Representatives, subject in response to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actionsCompany Takeover Proposal, (iA) negotiate the terms offurnish, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, information (iiiincluding non-public information) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to the Company and its Subsidiaries to the Person that has made such Acquisition written Company Takeover Proposal and its Representatives; provided that the Board of Directors of Seller reasonably determines constitutes competitively sensitive information or data provided to any such Person who is a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing competitor of the existence of any proposal or inquiry received after the date of this Agreement by Seller Company or any of its subsidiaries Subsidiaries will only be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or its or their Representatives with respect to any Acquisition Proposaldata (provided, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board Company shall, prior to or substantially concurrently with the delivery to such Person, provide to Parent any information concerning the Company or any of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has its Subsidiaries that is provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent Person or its Representatives unless such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior ProposalParent) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged engage in good faith or otherwise participate in discussions or negotiations with Buyer to amend the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal. The Company shall promptly (and in any event within 24 hours) notify Parent in writing if the Company Board makes the determinations set forth in this Agreement Section 6.4(c) or if the Company takes any of the actions in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; clauses (x) and (Cy) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)above.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Presidio, Inc.)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the date hereof until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Person, one or more of their Representatives (including the Advisor):
(i) solicit, initiate respond to any Person making an Acquisition Proposal (A) to inform such Person of the restrictions of this Section 5.3 by providing a link to this Agreement (as publicly filed) and directing such Person to this section and (B) additionally for the limited purpose of clarifying (but for the avoidance of doubt not accepting or knowingly take any action to facilitate or encourage negotiating) the submission of any written terms and conditions set forth in such Acquisition Proposal, ; and
(ii) enter into participate or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a Company an bona fide written Acquisition Proposal made on or after the date of this Agreement hereof, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a5.3(a); provided, however, that, with respect to this Section 5.3(b)(ii), the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the Board of Directors of Seller such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would reasonably be expected to violate its fiduciary obligations pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Mobileiron, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and continuing until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and Parent’s receipt of the Written Consent, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b)any Person or such Person’s Representatives that has made, subject renewed or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a5.3(b) and (provided that for purposes of the first sentence of Section 5.3(b) such breach was not immaterial), that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisors and outside legal counsel) either constitutes a Superior Proposal or could reasonably believes would be expected to lead to a Superior ProposalProposal and that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 that the Company promptly (and after providing written notice to Buyer of its intention to take in any such actions, event within forty-eight (i48) negotiate hours) notifies Parent in writing if the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party Company or its Representatives or financing sources has provided any non-public information relating to concerning the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller Company or any of its subsidiaries Subsidiaries or its or their Representatives with respect Affiliates to any Acquisition Proposalsuch Person or Group and, subject to applicable Law and any applicable “clean team” or similar arrangement, the material terms Company shall provide to Parent and conditions of Merger Sub any non-public information or data that is provided to any Person given such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent or Merger Sub prior to or promptly (and in any event within forty-eight (48) hours) following the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, at any time following the date of this Agreement and prior to the later of (ax) Subject 11:59 p.m. (New York City time) on the date that is thirty-five (35) days after the date hereof (the “Consent End Date”) (in the event that the Stockholder Written Consent is delivered to the Company in accordance with Section 5.04(b6.3(a) hereof) or (y) the time when the Requisite Stockholder Approval is obtained (the “Stockholder Approval Date”) (in the event the Stockholder Written Consent is not delivered to the Company in accordance with Section 6.3(a) and the Agreement is not terminated in accordance with Section 8.1(j)), neither Seller nor any of its subsidiaries the Company and the Company Board (including the Selling Subsidiariesor a committee thereof) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement and prior to the Stockholder Approval Date, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise result from a any material breach of this Section 5.04(a) and 5.3; provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal; and provided further, Seller mayhowever, directly or indirectly through its Representatives, subject that the Company will promptly (and in any event within one Business Day) make available to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b)5.4, neither Seller nor until the Company’s receipt of the Requisite Shareholder Approval, if the Company or any of its subsidiaries Representatives receive a bona fide Acquisition Proposal, which Acquisition Proposal was not a result of a material breach of Section 5.4(a) then the Company and the Company Board (or a committee thereof) may, directly or indirectly, through one or more of their Representatives (including the Selling Subsidiaries) shallAdvisors), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking to make, has made or has made, an delivered such bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve if requested by such Person); provided that, the Company and its Representatives may contact any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related Third Person with respect to an Acquisition Proposal to clarify any ambiguous terms and conditions thereof that are necessary to determine whether the Acquisition Proposal constitutes or would reasonably likely lead to a Superior Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant without the Company Board being required to Section 5.04(bmake the determination in the following proviso), subject to it being agreed that if the requirements set forth Company Board receives any clarifications from such Third Person, the Proposal Notice Period will not be deemed commenced until such clarifications are provided to Parent; provided, however, that the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisors and outside legal counsel) that such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes Superior Proposal or would be expected to reasonably likely lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.4(b) would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further, that the Company will provide to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent before or substantially concurrently (but in no event later than forty-eight (48) hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement
Superior Proposals. (a) Subject to compliance with the other provisions of this Section 5.04(b5.3, including compliance with Section 5.3(a), neither Seller nor any until the Company’s receipt of its subsidiaries the Requisite Stockholder Approval, the Company and the Company Board (including the Selling Subsidiariesor a duly authorized committee thereof) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly indirectly, through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person (or its Representatives) (a “Prospective Purchaser”) that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide written Acquisition Proposal, and otherwise facilitate such Acquisition Proposal made after or assist such Prospective Purchaser with such Acquisition Proposal (in each case, if requested by such Prospective Purchaser), in each case with respect to an Acquisition Proposal that was not the date result of any breach of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and 5.3; provided, however, that the Company Board of Directors of Seller reasonably believes (or a duly authorized committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would be expected reasonably likely to lead to result in a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a duly authorized committee thereof) has determined in good faith (after consultation with its Representatives, subject outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 and after providing written notice 5.3(b) would reasonably be expected to Buyer result in a breach of its intention fiduciary duties pursuant to take any such actionsapplicable Law; and provided, (i) negotiate further, that the terms ofCompany shall at the same time, and enter intoor substantially concurrently, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer provide to Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant any such Prospective Purchaser that was not previously made available to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries Parent or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Representatives. Notwithstanding anything herein to the contrary, Seller following compliance with Section 5.3(e), the Company shall not be entitled permitted to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller request clarifications from any Prospective Purchaser who has received a bona fide written made an Acquisition Proposal made after solely for the date of this Agreement that was unsolicited purpose of, and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided necessary, to Buyer); and
(iv) (A) the Notice includes clarify the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require so that the Company Board can make a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that determination whether such Acquisition Proposal which was determined constitutes, or is reasonably likely to constitute a Superior Proposal no longer is result in, a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one or more of its subsidiaries their Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” or similar obligation material breach of Section 5.3(b); provided, that, the Company and its Representatives may contact any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations Person in writing (with a request that any response from such Third Party conducted prior to the date of this Agreement is in writing) with respect to an Acquisition Proposal to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal.
Proposal constitutes a Superior Proposal (b) Notwithstanding Section 5.04(awithout the Company Board being required to make the determination in the following proviso), at it being agreed that if the Company Board receives any time clarifications from such Third Person, the date of this Agreement Proposal Notice Period will not be deemed commenced until consummation of such clarifications are provided to Parent; provided, however, that the Closing, if Seller receives Company Board (or a bona fide written committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will provide to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently (but in no event later than 12 hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Instructure Inc)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.3 (a) Subject but subject to the provisos in this Section 5.04(b5.3(b)), neither Seller nor any if, prior to the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallRequisite Stockholder Approval, and Seller shall cause its subsidiaries and its and their officersthe Company receives a bona fide Acquisition Proposal after the date hereof that did not result from a material breach of Section 5.3(a), directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company may, directly or indirectly through another Personone or more of their Representatives and/or Reinvestment Stockholders, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in Company any such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited Agreement, and did not otherwise result from facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal in a breach of manner consistent with this Section 5.04(a) and 5.3(b); provided, that the Company Board (acting upon the recommendation of Directors of Seller the Special Committee) or the Special Committee in good faith (after consultation with its financial advisor and outside legal counsel) has determined that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller mayand the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee in good faith (after consultation with its financial advisor and outside legal counsel, directly or indirectly through its Representatives, subject as applicable) has determined that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 36 hours) (x) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent and (y) provide written notice to Parent of any determination made by the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee pursuant to the Sold Entities pursuant immediately preceding proviso; and provided further, however, that if any such Person or its Representatives is a competitor of the Company Group, the Company Group shall not provide any information that in the good faith determination of the Company constitutes commercially sensitive non-public information to an Acceptable Confidentiality Agreement, (iii) engage such Person in negotiations or discussions connection with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in actions permitted by this Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto 5.3 other than in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided “clean room” or other similar procedures designed to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take limit any potential adverse effect on the Company from sharing such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)information.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.3, until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly indirectly, through another Personone or more of their Representatives (including its financial advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, (ii) subject to an Acceptable Confidentiality Agreement, furnish any non-public information relating to the Sold Entities Company or the Securities its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in its Subsidiaries to any way with, any Third Party Person or its Representatives that is seeking has made or delivered to make, or has made, an the Company a bona fide Acquisition Proposal, and (iii) enter intootherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives, approve or resolve to approve or publicly propose to approve any agreement prospective debt and equity financing sources and/or their respective Representatives) with such Acquisition Proposal (in principleeach case, letter of intentif requested by such Person), term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related in each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date material breach of this Agreement Section 5.3; provided, however, that the Company and the Company Board (or a committee thereof) may only take the foregoing actions if the Company Board (or a committee thereof) has determined in good faith (after consultation with respect to any Acquisition Proposal.
(bits financial advisor and outside legal counsel) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written that such Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or would reasonably believes would be expected to likely lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided, further, that the Company will provide to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to any Person or its Representatives given such access that was not previously made available to Parent prior to or substantially concurrently (but in no event later than twenty-four hours after) the time it is provided to such Person. Notwithstanding anything to the Sold Entities pursuant to an Acceptable Confidentiality Agreementcontrary set forth in this Section 5.3, (iii) engage in negotiations or discussions with any Third Party the Company and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement may contact any third party with respect to such an Acquisition Proposal that solely to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Board of Directors of Seller reasonably determines Acquisition Proposal constitutes a Superior Proposal.
, it being agreed that if the Company Board (cor a committee thereof) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of receives any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposalclarifications from such third party, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall Notice Period will not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has deemed commenced until such clarifications are provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Atlas Technical Consultants, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.3, if at any time from and after the No-Shop Period Start Date until the Company’s receipt of the Requisite Company Stockholder Approval, (ax) Subject to Section 5.04(b), neither Seller nor the Company receives a bona fide written Acquisition Proposal from any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notPerson that did not result, directly or indirectly indirectly, from a breach of this Section 5.3, and (y) the Company Board determines in good faith (after consultation with its independent financial advisor and outside legal counsel) that (1) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (2) the failure to take the actions in clauses (i) and (ii) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Subsidiaries and the Company Board (or a committee thereof) may, directly or indirectly, through another Personone or more of their Representatives, in response to such Acquisition Proposal, (i) solicit, initiate enter into an Acceptable Confidentiality Agreement with such Person that has made or knowingly take any action to facilitate or encourage the submission of any delivered such Acquisition Proposal, Proposal and (ii) enter into pursuant thereto, participate or participate engage in any discussions or negotiations with, furnish any non-public information or data relating to the Sold Entities Company or the Securities its Subsidiaries to, or afford access to the business, properties, assets, books or books, records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating or data, or to any personnel, of the Sold Entities pursuant Company or its Subsidiaries to an Acceptable Confidentiality Agreementsuch Person or its Representatives; provided that the Company shall promptly (and in any event within 24 hours) provide to Parent and its Representatives, or promptly (iiiand in any event within 24 hours) engage in negotiations or discussions with any Third Party provide Parent and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d)access to, terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal any non-public information or data that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect is provided to any Acquisition Proposal, the material terms and conditions of any Person given such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms Parent, Merger Sub or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)their Representatives.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b)5.3, neither Seller nor any until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallRequisite Company Stockholder Approval, and Seller shall cause its subsidiaries the Company and its Subsidiaries and their officers, directors, employees, investment bankers, attorneys, accountants, consultants the Company Board (upon the recommendation of the Company Special Committee) or other agents or advisors (“Representatives”) to notthe Company Special Committee may, directly or indirectly indirectly, through another Personone or more of their Representatives, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into an Acceptable Confidentiality Agreement with any Person or group of Persons that has made or delivered to the Company an Acquisition Proposal (a copy of which the Company shall provide to Parent promptly (but in no event later than twenty-four (24) hours) after the Company’s receipt of the counterparty’s executed copy thereof) and, pursuant thereto participate or engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany or its Subsidiaries, to such Person or otherwise cooperate group of Persons or its or their respective Representatives, in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, each case (iiix) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise the result from of a breach of Section 5.04(a5.3(a) and (y) only if the Company Board (upon the recommendation of the Company Special Committee) or the Company Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the Board of Directors of Seller (1) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to result in a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 Proposal and after providing written notice to Buyer of its intention (2) the failure to take any such actionsactions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, (i) negotiate however, that the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Company will provide to Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently with (but in no event later than twenty-four (24) hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Consolidated Communications Holdings, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.1, from the No-Shop Period Start Date until the Company’s receipt of the Company Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly indirectly, through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company, its Subsidiaries or the Securities Affiliates to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any Personnel, of the Sold Entities toCompany, its Subsidiaries or otherwise cooperate in any way with, Affiliates pursuant to an Acceptable Confidentiality Agreement to any Third Party Person or its Representatives that is seeking has made or delivered to makethe Company a bona fide Acquisition Proposal after the No-Shop Period Start Date, and otherwise facilitate such Acquisition Proposal or has madeassist such Third Person (and its Representatives) with such Acquisition Proposal (in each case, an Acquisition Proposalif requested by such Third Person), (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.1(b); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.1(c) would be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating concerning the Company, its Subsidiaries or Affiliates that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Third Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal Parent prior to or substantially concurrently (but in connection with such Acquisition Proposal (to no event later than 24 hours after) the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the such Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Cynergistek, Inc)
Superior Proposals. Notwithstanding anything to contrary set forth in this Agreement, from the date hereof until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the financial advisors set forth in Section 3.18 of the Company Disclosure Letter), (i) solicit, initiate participate or knowingly take any action to facilitate engage in discussions or encourage the submission of any Acquisition Proposal, negotiations with or (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany Group pursuant to an Acceptable Confidentiality Agreement, to any Person (or its Affiliates, Representatives or financing sources) that has made or delivered to the Company an Acquisition Proposal after the date hereof, and otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an facilitate the making of such Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.2(a); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.2(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further, however, that the Company will promptly (and in any event within two Business Days) make available to Buyer of its intention Parent any non-public information concerning the Company Group that is provided to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party Person or its Affiliates, Representatives or financing sources non-public information relating that was not previously made available to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller Parent or any of its subsidiaries Affiliates, Representatives or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposalfinancing sources.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.5, from the date of this Agreement until Meridian’s receipt of the Meridian Shareholder Approval, if the Seller Parties receive from any Person a bona fide, written and unsolicited Acquisition Proposal not resulting from a breach of Section 5.5 of this Agreement or any prior similar agreement with the Buyer or its affiliates, the Meridian Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of its Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Seller Parties or the Securities any of their Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Seller Parties or otherwise cooperate in any way with, any Third Party that is seeking of their Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to such Person or its Representatives if and only if (i) the requirements set forth Meridian Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel and financial advisor) that such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) the Meridian Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel) that the failure to take the actions contemplated by this Section 5.5(b) would be inconsistent with its fiduciary duties under applicable Law; and (iii) the Seller Parties have given the Buyer written notice of the identity of such Person, a copy of an Acceptable Confidentiality Agreement entered into with such Person, a copy of any written materials reflecting the terms of the Acquisition Proposal, a summary of the material terms of such Acquisition Proposal to the extent not reflected in such written materials, and notice of the Seller Parties’ intention to participate or engage in discussions or negotiations with, or furnish to such Third Party or its Representatives or financing sources non-public information relating to, such Person; and provided further, that the Seller Parties will promptly (and in any event within one Business Day) make available to the Sold Entities pursuant Buyer any non-public information concerning the Seller Parties and their Subsidiaries that is provided to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject that was not previously made available to compliance with the procedures Buyer. Notwithstanding anything to the contrary set forth in this Section 5.04(c5.5 or elsewhere in this Agreement, prior to the Closing, neither the Seller Parties nor any of their Subsidiaries shall terminate, amend, modify or waive any rights under, or release any Person (other than the Buyer) and (d) and Section 11.01(d)from, terminate this Agreement to enter into a definitive any “standstill” or other similar agreement with respect to such Acquisition Proposal that between the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of their Subsidiaries, on the one hand, and such Person, on the other, unless the Meridian Board (or a committee thereof) determines in good faith (after consultation with its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(aoutside legal counsel) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends failure to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection would be inconsistent with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)its fiduciary duties under applicable Law.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Equity Securities Purchase Agreement (Meridian Waste Solutions, Inc.)
Superior Proposals. (a) Subject A Covenantor or its directors may, in respect of any Acquisition Proposal received by them prior to Section 5.04(bthe approval by its shareholders of the Amalgamation (or, with respect to FansUnite, if approval of shareholders is not required to effect the Amalgamation, prior to the approval by the Askott Shareholders of the Amalgamation), neither Seller nor any change their recommendation to its shareholders regarding the approval of its subsidiaries the Amalgamation (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (a “RepresentativesRecommendation Change”) if prior to not, directly or indirectly through another Person, the Recommendation Change: (i) solicit, initiate or knowingly take any action they have determined that such Acquisition Proposal constitutes a Superior Proposal and advised the other parties hereto of that fact and their intention to facilitate or encourage the submission of any Acquisition Proposal, make a Recommendation Change; (ii) the other parties hereto have been provided with a copy of the document containing such Superior Proposal (with such deletions as are necessary to protect any confidential portions of such document, provided that material terms and conditions of, and the identity of the person making, such Superior Proposal may not be deleted); and (iii) five (5) Business Days have elapsed from the later of the date on which the other parties hereto received the material required to be provided to it pursuant to (i) and (ii). Each Covenantor agrees that if the other party so elects, during the five (5) Business Days period referred to in (iii), they and their financial and legal advisors shall negotiate in good faith to make such adjustments to the terms and conditions of this Agreement as would enable the Covenantor to not make its Recommendation Change, while allowing their respective boards of directors to comply with their fiduciary duties under Applicable Law. During such five (5) Business Day period, a Covenantor shall not enter into any agreement in respect of the Superior Proposal with the party making the Superior Proposal; provided, however, that such Covenantor may, during that time, enter into or participate continue discussions with such party, but such discussions shall in any discussions or negotiations with, furnish any information relating to no way affect the Sold Entities or the Securities or afford access to the business, properties, assets, books or records rights of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of FansUnite under this Agreement with respect to any Acquisition Proposalrequire that Askott hold the Askott Meeting and, if the Askott Shareholders approve the Amalgamation and the other conditions for Askott’s benefit are satisfied or waived, proceed to complete the Amalgamation.
(b) Notwithstanding Section 5.04(a)The board of directors of a Covenantor may communicate to its shareholders its Recommendation Change in such manner as it may elect, at including the issuance of a press release and such other communication it determines necessary. The first public announcement or other communication to the shareholders of a Covenantor of the Recommendation Change is referred to as the “Change Date”. At any time from following the date of this Agreement until consummation of Change Date, the Closingother parties may elect, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written by notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating writing to the Sold Entities pursuant to an Acceptable Confidentiality AgreementCovenantor, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:9.3 hereof, and upon such party so doing, the Covenantor will be obliged to make payment of the Compensation Fee contemplated by, and in accordance with, Section 8.3 hereof; alternatively, notwithstanding any Recommendation Change, FansUnite may require Askott to hold the Askott Meeting, and if FansUnite takes no action, it shall be deemed to have not terminated this Agreement and Askott will proceed to hold the Askott Meeting.
(ic) Seller has received As used in this Agreement, “Superior Proposal” means a bona fide unsolicited written Acquisition Proposal made received after the date hereof that: (A) is not conditional on obtaining financing; (B) in respect of this Agreement which the independent directors of the Covenantor have unanimously determined in good faith, after consultation with, and receiving advice (which may include a written opinion) from, as appropriate, their financial, legal and other advisors that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto such Acquisition Proposal would, if consummated in accordance with Section 5.04(b)(iii)) reasonably determines constitutes its terms, result in a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (transaction which is more favourable from a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available financial point of view to the Third Party making holders of the Covenantor’s shares than the Transaction (taking into consideration any Acquisition Proposal in connection with such Acquisition Proposal (adjustment to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement Transaction proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller other parties pursuant to clause (B) or otherwisethis Section 8.2).
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Amalgamation Agreement
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the date hereof until the Company’s receipt of the Requisite Stockholder Approval, the Company Parties and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, the Company Parties an Acquisition ProposalProposal after the date hereof, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives and financing sources) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.3(a); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take the Parent Entities any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent Entities.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Pluralsight, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.1, from the No-Shop Period Start Date until the Company’s receipt of the Company Shareholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly indirectly, through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any information (including non-public information) relating to the Sold Entities Company, its Subsidiaries or the Securities Affiliates to, or afford access to the business, properties, assets, books books, records or records other information (including non-public information), or to any personnel, of the Sold Entities toCompany, its Subsidiaries or otherwise cooperate in any way with, Affiliates pursuant to an Acceptable Confidentiality Agreement to any Third Party Person or its Representatives that is seeking has made or delivered to makethe Company a bona fide Acquisition Proposal after the No-Shop Period Start Date, and otherwise facilitate such Acquisition Proposal or has madeassist such Third Person (and its Representatives) with such Acquisition Proposal (in each case, if requested by such Third Person), in each case with respect to an Acquisition ProposalProposal that did not result from any material breach of Section 5.1(b); provided, (iii) enter into, approve or resolve to approve or publicly propose to approve that the Company and its Representatives may contact any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related Third Person with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant with a request that any response from such Third Person is in writing) to Section 5.04(bclarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (without the Company Board being required to make the determination in the following proviso at the time of seeking such clarification), subject it being agreed that if the Company Board receives any clarifications from such Third Person, the Notice Period will not be deemed commenced until such clarifications are provided to Parent; provided, however, that, except as permitted by the requirements set forth immediately preceding proviso the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.1(c) would be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating concerning the Company, its Subsidiaries or Affiliates that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Third Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal Parent prior to or substantially concurrently (but in connection with such Acquisition Proposal (to no event later than 24 hours after) the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the such Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Intricon Corp)
Superior Proposals. Notwithstanding anything to contrary set forth in this Agreement, from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Company’s advisors), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms ofAgreement, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on otherwise facilitate such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates Acquisition Proposal or assist such Person (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (ivsources) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the an Acquisition Proposal that is did not result from any material breach of Section 5.3(a); provided, however, that (i) the basis of the proposed termination by Seller Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the Board of Directors of Seller reasonably determines such Acquisition Proposal either constitutes a Superior Proposal, or would reasonably be expected to lead to, a Superior Proposal, and (ii) and the identity of the Third Party making the proposal Company Board (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (Bcommittee thereof) during such three Business Day period, if requested by Buyer, Seller has engaged determined in good faith negotiations (after consultation with Buyer its financial advisor and outside legal counsel) that the failure to amend take the actions contemplated by this Agreement in such a manner that such Acquisition Proposal which was determined Section 5.3(b) would be or would reasonably be expected to constitute a Superior Proposal no longer is a Superior Proposalbe inconsistent with its fiduciary obligations pursuant to applicable Law; and provided further, however, that the Company will promptly (Cand in any event within 48 hours) at make available to Parent any non-public information concerning the end of Company Group that is provided to any such three Business Day period, such Acquisition Proposal has Person or its Representatives that was not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues previously made available to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Augmedix, Inc.)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 3.13 (a) Subject but subject to the provisos in this Section 5.04(b3.13(b)), neither from the date of this Agreement until Seller’s receipt of the Requisite Stockholder Approval, Seller nor any of its subsidiaries (including and the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notBoard may, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Seller or the Securities its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records of the Sold Entities toother non-public information, or otherwise cooperate to any personnel, of Seller or its Subsidiaries, in any way with, any Third Party that is seeking each case pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a)Person or its Representatives that has made, at any time from the date of this Agreement until consummation of the Closing, if renewed or delivered to Seller receives a bona fide written an Acquisition Proposal made after the date of this Agreement Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an unsolicited Acquisition Proposal that was unsolicited and did not otherwise result from a any breach of this Section 5.04(a) and 3.13; provided, however, that the Seller Board of Directors of Seller has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, and the Seller mayBoard has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 3.13(b) would be inconsistent with its fiduciary duties pursuant to applicable law; provided further, directly or indirectly through its Representativeshowever, that Seller will promptly (and in any event within twenty-four (24) hours), subject to compliance with this Section 5.04 and after providing written notice applicable law, make available to Buyer of its intention to take Purchaser any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning Seller or its Subsidiaries (including the Acquired Companies) that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:Purchaser. 298078281.4
Appears in 1 contract
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.3, until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one or more of its subsidiaries their Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person (or otherwise cooperate in any way with, any Third Party its Representatives) that is seeking has made or delivered to make, or has made, an the Company a bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to that was did result from the breach of this Section 5.04(b)5.3; provided that, subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of Company and its Representatives may contact any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations Person in writing (with a request that any response from such Third Party conducted prior to the date of this Agreement Person is in writing) with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written an Acquisition Proposal made after solely to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the date of this Agreement that was unsolicited and did not otherwise result from Acquisition Proposal constitutes a breach of Section 5.04(a) and Superior Proposal; provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to likely lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further, that the Company will provide to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently with (but in no event later than twenty-four (24) hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Cloudera, Inc.)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the date of this Agreement until the Company's receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise result from a solicited in material breach of Section 5.04(a) and 5.3(a); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would be inconsistent with its fiduciary obligations pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within one Business Day) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to concerning the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party Company and its Representatives and financing sources and (iv) subject Subsidiaries that is provided to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to any such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries Person or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Marketo, Inc.)
Superior Proposals. (a) Subject to Section 5.04(b), neither Seller nor In the event that any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants Person or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating Group submits to the Sold Entities or the Securities or afford access to the businessCompany (and does not withdraw) an unsolicited, propertieswritten, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an bona fide Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and Offer that the Company Board determines in good faith (after consultation with its outside legal counsel and a financial advisor of Directors of Seller national standing) is, or would reasonably believes would be expected to lead to to, a Superior Proposal, Seller maythen, directly or indirectly through its Representativesnotwithstanding anything to the contrary contained in Section 6.1(a), subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, the Company may (i) negotiate the terms of, enter into discussions with such Person or Group regarding such Acquisition Proposal and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish deliver or make available to such Third Party or its Representatives or financing sources Person non-public information relating regarding the Company and the Subsidiaries; provided that, in each such case, the Company, the Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, the Subsidiaries and the Company Representatives shall have violated any of the provisions of this Section
6.1 in any material respect, (B) the Company Board first shall have determined in good faith (after consultation with its outside legal counsel) that the failure to take such action is reasonably likely to constitute a breach of its fiduciary obligations to the Sold Entities pursuant to an Acceptable Confidentiality Agreementstockholders of the Company under Applicable Law, (iiiC) engage in negotiations or discussions with any Third Party and the Company first shall have given Parent at least three Business Days advance written notice of its Representatives and financing sources and (iv) subject intent to compliance with take such actions, which notice shall specify the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d)actions it intends to take, terminate this Agreement to enter into a definitive agreement with respect to the identity of the Person that submitted such Acquisition Proposal that the Board and all of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, (D) prior to making available to any such proposal or inquiry or Acquisition Proposal Person any material non-public information, the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (including any changes theretoa copy of which executed Acceptable Confidentiality Agreement shall be provided to Parent, for informational purposes only, within 24 hours of its execution) and the identity of the Person (E) prior to or contemporaneously with delivering or making available any such proposalnon-public information to such Person, inquiry or Acquisition Proposal.
the Company shall have delivered such non-public information to Parent (d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with Parent such Acquisition Proposal (to the extent such documentation and information has not been previously non-public information; provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes Company shall have delivered to Parent a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of list identifying all such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwisenon-public information).
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Meru Networks Inc)
Superior Proposals. Notwithstanding anything to contrary in this Section 5.3, from the No-Shop Period Start Date until the Acceptance Time, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Company Financial Advisor), following the execution of an Acceptable Confidentiality Agreement, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, ; (ii) furnish any non-public information relating to the Sold Entities or the Securities or Company to; (iii) afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities Company to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) ; or (iv) waiveotherwise facilitate the making of a Superior Proposal by, terminatein each case, modify any Person or fail to enforce any provision of any “standstill” its Representatives that has made or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior delivered to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide written Acquisition Proposal made after the date No-Shop Period Start Date that was not solicited in material breach of this Agreement Section 5.3, but only if the Company Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that was unsolicited and did not otherwise result from (A) such Acquisition Proposal either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject ; and (B) the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be inconsistent with the directors’ fiduciary duties pursuant to applicable Law. In connection with the foregoing, the Company will substantially contemporaneously (and after providing written notice in any event within twenty-four (24) hours) provide to Buyer of its intention to take any such actionsParent, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer or provide Parent and its Affiliates (an “Acceptable Confidentiality Agreement”)Representatives access to, (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating concerning the Company that is provided to any such Person or its Representatives that was not previously made available to Parent. For the Sold Entities pursuant avoidance of doubt, notwithstanding the occurrence of the No-Shop Period Start Date, the Company may continue to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth activities described in Section 5.04(c5.3(a) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition ProposalExcluded Party, the material terms and conditions of including with respect to any such amended proposal or inquiry or Acquisition Proposal (including any changes thereto) offer submitted by an Excluded Party following the No-Shop Period Start Date, and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(drestrictions in Section 5.3(b) Notwithstanding anything herein to the contrary, Seller shall will not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions apply with respect thereto if (x) the requirements set forth in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) clauses (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend of this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; Section 5.3(d) have been satisfied as of the No-Shop Period Start date and (Cy) at the end Company has notified Parent of its intent to continue such three Business Day periodnegotiations, such Acquisition Proposal has not been withdrawn and which notice will contain the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed information required by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwiseSection 5.3(g).
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Globalscape Inc)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b)5.3, neither Seller nor any until the Company’s receipt of its subsidiaries the Stockholder Consent, in response to an unsolicited bona fide Acquisition Proposal, the Company and the Company Board or the Special Committee may, directly or indirectly, through one or more of their Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b)any Person and its Representatives (including prospective debt and equity financing sources) that has made, subject renewed or delivered to the requirements set forth in Company such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of this Section 5.04(a) and 5.3; provided, that the Company and its Representatives may contact any person in writing (with a request that any response from such Person is in writing) with respect to an Acquisition Proposal solely to clarify any ambiguous terms and conditions thereof with are reasonably necessary to determine whether the Acquisition Proposal constitutes a Superior Proposal. The Company Board of Directors of Seller or Special Committee may only take the actions contemplated by the preceding sentence if (A) the Company Board or Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly Proposal and (B) the Company Board or indirectly through Special Committee has determined in good faith (after consultation with its Representatives, subject outside legal counsel) that failure to compliance with take the actions contemplated by this Section 5.04 and after providing written notice 5.3(b) would reasonably be expected to Buyer of be inconsistent with its intention fiduciary duties pursuant to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer applicable Law. The Company shall provide to Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently with the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.5, from the date of this Agreement until the Company’s receipt of the Requisite Stockholder Approvals, if the Company receives from any Person a bona fide, written and unsolicited Acquisition Proposal not resulting from a breach of this Section 5.5, the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of its Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to such Person or its Representatives if and only if (i) the requirements set forth Company Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel and financial advisor) that such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) the Company Board (or a committee thereof) has determined in good faith (after consultation with its outside legal counsel) that the failure to take the actions contemplated by this Section 5.5(b) would be inconsistent with its fiduciary duties under applicable Law; and (iii) the Company has given the Parent written notice of the identity of such Person, a copy of an Acceptable Confidentiality Agreement entered into with such Person, a copy of any written materials reflecting the terms of the Acquisition Proposal, a summary of the material terms of such Acquisition Proposal to the extent not reflected in such written materials, and notice of the Company’s intention to participate or engage in discussions or negotiations with, or furnish to such Third Party or its Representatives or financing sources non-public information relating to, such Person; and provided further, that the Company will promptly (and in any event within one (1) Business Day) make available to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with Parent any Third Party non-public information concerning the Company and its Subsidiaries that is provided to any such Person or its Representatives and financing sources and (iv) subject that was not previously made available to compliance with the procedures Parent. Notwithstanding anything to the contrary set forth in this Section 5.04(c5.5 or elsewhere in this Agreement, prior to the Closing, neither the Company nor any of its Subsidiaries shall terminate, amend, modify or waive any rights under, or release any Person (other than the Parent) and (d) and Section 11.01(d)from, terminate this Agreement to enter into a definitive any “standstill” or other similar agreement with respect to such Acquisition Proposal that between the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller Company or any of its subsidiaries or Subsidiaries, on the one hand, and such Person, on the other, unless the Company Board determines in good faith (after consultation with its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(aoutside legal counsel) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends failure to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection would be inconsistent with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)its fiduciary duties under applicable Law.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. (a) Subject Notwithstanding anything to contrary set forth in this Agreement, including this Section 5.3(c), and subject to the rights of the Company with respect to Excluded Parties pursuant to Section 5.04(b5.3(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shallright to continue and maintain discussions and negotiations with, and Seller shall cause its subsidiaries provide information to, any Excluded Parties pursuant to Section 5.3(b), from the No-Shop Period Start Date until the earlier of the termination of this Agreement pursuant to Article VIII and its the Company’s receipt of the Requisite Shareholder Approval, the Company and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company Board may, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b)any Person or its Representatives that has made, subject renewed or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a5.3(b), and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person) if, and only if, the Company Board shall have determined in good faith (after consultation with its financial advisor and outside legal counsel) that the Board of Directors of Seller such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject Proposal and that the failure to compliance with take such action contemplated by this Section 5.04 and after providing written notice 5.3(c) would reasonably be expected to Buyer of cause the Company Board to violate its intention fiduciary duties under applicable Laws; provided that the Company will promptly (and, in any event, within 24 hours) make available to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to concerning the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party Company and its Representatives and financing sources and (iv) subject Subsidiaries that is provided to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to any such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries Person or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or such Person’s Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement and otherwise facilitate such Acquisition Proposal or assist such Person (and such Person’s Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case, with respect to an Acquisition Proposal that was unsolicited and did not otherwise the result from of a material breach of Section 5.04(a) and 5.3(a), that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith, after consultation with its financial advisors and outside legal counsel, (i) either constitutes a Superior Proposal or could reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through Proposal and (ii) that the failure to do so would be reasonably likely to be inconsistent with its Representativesfiduciary duties under applicable Law; provided that, subject to compliance with this Section 5.04 applicable Law and after providing written notice any applicable “clean team” or similar arrangement, the Company shall provide to Buyer of its intention to take Parent and Merger Sub any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal data that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect is provided to any Acquisition Proposal, the material terms and conditions of any Person given such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent or Merger Sub prior to or promptly (and in any event within 24 hours) following the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from December 11, 2020 until the Offer Acceptance Time, the Company Parties and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, the Company Parties an Acquisition ProposalProposal after December 11, 2020, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives and financing sources) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.3(a); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take the Parent Entities any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent Entities.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding Section 2.3:
(a) Subject the Board of Directors may, subject to compliance with the other provisions of this Section 5.04(b)2.5, neither Seller nor withdraw, modify or change any recommendation regarding the Offer or approve, recommend or enter into an agreement in respect of its subsidiaries (including a Superior Proposal, if prior to the Selling Subsidiaries) shallexpiry of the Offer, a Superior Proposal is received by, or offered or made to, the Company or any member of the Board of Directors, Senior Executive or the Financial Advisor or any agent or representative of the Company or Shareholder, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicitin the determination of the Board of Directors acting in good faith (after receiving the advice of its financial advisor and outside legal advisors), initiate or knowingly take any to refrain from taking such action to facilitate or encourage would be inconsistent with the submission performance by the Board of any Acquisition ProposalDirectors of its fiduciary duties under applicable Law, (ii) enter into this Agreement is concurrently terminated pursuant to Section 8.1(f) or participate in any discussions or negotiations with8.1(g), furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, and (iii) enter intothe Company has previously, approve or resolve to approve or publicly propose to approve any agreement in principleconcurrently will have, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject paid the Non-Completion Fee to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.Parent;
(b) Notwithstanding Section 5.04(a)upon receipt by the Company of (i) any notice, at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and proposal or inquiry that the Board of Directors of Seller determines in good faith, could reasonably believes would be expected to lead to, an Alternative Transaction or any amendments thereto, or any other transaction the consummation of which would reasonably be expected to impede, interfere with, prevent or materially delay the Offer or a Superior ProposalSubsequent Acquisition Transaction, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any request for non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller Company or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal Subsidiaries in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
an Alternative Transaction, or (iv) any request for access to the properties, books or records of the Company or any of its Subsidiaries in connection with an Alternative Transaction, the Company shall advise the Offeror thereof by telephone promptly, and shall in any event no later than 24 hours thereafter give notice to the Offeror thereof (A) including identifying the Notice includes Person proposing such transaction and the terms and conditions of such transaction and include a copy of any documents received by the Acquisition Proposal Company in respect of such transaction). Prior to providing any non-public information to such Person, the Company will confirm in writing to the Offeror that is it has received from such Person an executed confidentiality agreement having terms substantially similar to the basis Confidentiality Agreement (other than the standstill clause restricting such Person from initiating an Alternative Transaction as provided for by paragraph 5 of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment Confidentiality Agreement). The Company will provide or make available to the financial terms or Offeror copies of any material amendment information (if not previously provided to the Offeror) provided to any other material term Person promptly following the provision of such Acquisition Proposal shall require a new Notice information to such Person and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:event within 24
Appears in 1 contract
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.3, except for actions permitted under Section 5.3(a) as may relate to any Excluded Party (abut only for so long as such Person or group of Persons is an Excluded Party) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its Representatives which actions permitted under Section 5.3(a) shall be permissible until the Cut-Off Date, after the Go-Shop Period End Date until the Company’s receipt of the Requisite Stockholder Approval, the Company and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company Board may, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide written Acquisition Proposal made after the date of this Agreement that has not been withdrawn, or otherwise facilitate or assist such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise result from a solicited in material breach of Section 5.04(a) and 5.3(b); provided, however, that the Company Board of Directors of Seller has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through and the Company Board has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to concerning the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party Company and its Representatives and financing sources and (iv) subject Subsidiaries that is provided to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to any such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries Person or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Natus Medical Inc)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 4.3, from the Agreement Date until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one or more of its subsidiaries their Representatives (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another PersonAdvisor), (i) solicit, initiate participate or knowingly take any action to facilitate engage in discussions or encourage the submission of any Acquisition Proposal, negotiations with or (ii) enter into or participate in any discussions or negotiations withpursuant to an Acceptable Confidentiality Agreement, (1) furnish any non-public information relating to the Sold Entities Company Group to or the Securities or (2) afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany Group, or otherwise cooperate in any way witheach case, any Third Party Person and its Representatives (including prospective debt and equity financing sources and/or their respective Representatives) that is seeking to make, or has made, an renewed or delivered to the Company a bona fide Acquisition Proposal, Proposal that did not result from a material breach of Section 4.3; provided that the Company and its Representatives may contact any Person in writing (iiiwith a request that any response from such Person is in writing) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant solely to Section 5.04(b), subject clarify any ambiguous terms and conditions thereof which are reasonably necessary to determine whether the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after constitutes a Superior Proposal. The Company and the date of this Agreement that was unsolicited and did not otherwise result from Company Board (or a breach of Section 5.04(acommittee thereof) and that may only take the Board of Directors of Seller actions contemplated by the preceding sentence if (A) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly Proposal and (B) the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 and after providing written notice 4.3(c) would reasonably be expected to Buyer of be inconsistent with its intention fiduciary duties pursuant to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer applicable Law. The Company will provide to Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently with (but in no event later than twenty-four (24) hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (New Relic, Inc.)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3 (a) Subject but subject to the provisos in this Section 5.04(b5.3(b)), neither Seller nor at any time from the No-Shop Period Start Date until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallRequisite Stockholder Approval, the Company and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Special Committee may, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking Company Group pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement that was unsolicited Agreement, and did not otherwise result from a breach of Section 5.04(afacilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) and with such Acquisition Proposal (in each case, if requested by such Person); provided, however, that the Board of Directors of Seller Special Committee has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly or indirectly through and the Special Committee has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (EngageSmart, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.3, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one or more of its subsidiaries their Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person (or otherwise cooperate in any way with, any Third Party its Representatives) that is seeking has made or delivered to make, or has made, an the Company a bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to that did not result from the breach of this Section 5.04(b), subject to 5.3; provided that the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of Company and its Representatives may contact any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations Person in writing (with a request that any response from such Third Party conducted prior to the date of this Agreement Person is in writing) with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written an Acquisition Proposal made after solely to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the date of this Agreement that was unsolicited and did not otherwise result from Acquisition Proposal constitutes a breach of Section 5.04(a) and Superior Proposal; provided that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(b) could reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further, that the Company will provide to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or concurrently with the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one or more of its subsidiaries their Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company a, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” or similar obligation material breach of Section 5.3(b); provided, that, the Company and its Representatives may contact any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations Person in writing (with a request that any response from such Third Party conducted prior to the date of this Agreement Person is in writing) with respect to an Acquisition Proposal to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal.
Proposal constitutes a Superior Proposal (b) Notwithstanding Section 5.04(awithout the Company Board being required to make the determination in the following proviso), at it being agreed that if the Company Board receives any time clarifications from such Third Person, the date of this Agreement Proposal Notice Period will not be deemed commenced until consummation of such clarifications are provided to Parent; provided, however, that the Closing, if Seller receives Company Board (or a bona fide written committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will provide to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently (but in no event later than 12 hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to contrary set forth in this Agreement, from the date hereof until the Company’s receipt of the Requisite Stockholder Approvals, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the financial advisor set forth in Section 3.18 of the Company Disclosure Letter), (i) solicit, initiate participate or knowingly take any action to facilitate engage in discussions or encourage the submission of any Acquisition Proposal, negotiations with or (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany Group pursuant to an Acceptable Confidentiality Agreement, to any Person (or its Affiliates, Representatives or financing sources) that has made or delivered to the Company an Acquisition Proposal after the date hereof, and otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an facilitate the making of such Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.2(a); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.2(b) would likely be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further, however, that the Company will promptly (and in any event within two Business Days) make available to Buyer of its intention Parent any non-public information concerning the Company Group that is provided to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party Person or its Affiliates, Representatives or financing sources non-public information relating that was not previously made available to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller Parent or any of its subsidiaries Affiliates, Representatives or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposalfinancing sources.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Agreement and Plan of Merger (Hall of Fame Resort & Entertainment Co)
Superior Proposals. (a) Subject Notwithstanding anything to Section 5.04(b)the contrary in this Agreement, neither Seller nor at any time following the No-Shop Period Start Date and prior to the time of its subsidiaries (including the Selling Subsidiaries) shallCompany’s receipt of the Requisite Stockholder Approval, the Company and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company Board may, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement Agreement, and otherwise facilitate such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise the result from of a material breach of Section 5.04(a5.3(b) and the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) (i) that the Board of Directors of Seller failure to take such action would be inconsistent with its directors’ fiduciary duties and (ii) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal; provided that, Seller may, directly or indirectly through its Representatives, subject the Company shall provide access to compliance with this Section 5.04 Parent and after providing written notice to Buyer of its intention to take Merger Sub any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating or data that is provided to any Person given such access that was not previously made available (whether prior to or after the Sold Entities pursuant execution of this Agreement) to an Acceptable Confidentiality Agreement, (iii) engage in negotiations Parent or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance Merger Sub concurrently with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d)time it is provided to such Person or, terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal information conveyed verbally, promptly thereafter; provided, further, that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of if the Person making any such proposalAcquisition Proposal is a competitor of the Company and its Subsidiaries, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller Company shall not be entitled provide any information that in the good faith determination of the Company constitutes commercially sensitive non-public information to exercise its right to terminate such Person in connection with any actions permitted by this Agreement pursuant to Section 11.01(d5.3(c) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto other than in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided “clean room” or other similar procedures designed to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take limit any potential adverse effect on the Company from sharing such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)information.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Cambrex Corp)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the No-Shop Period Start Date until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, the Company an Acquisition ProposalProposal after the No-Shop Period Start Date, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives and financing sources) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.3(b); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be inconsistent with its fiduciary obligations pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions Parent. Table of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:Contents
Appears in 1 contract
Sources: Merger Agreement (MINDBODY, Inc.)
Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.4, until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one or more of its subsidiaries their Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, an the Company a bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” or similar obligation material breach of Section 5.4(b); provided that, the Company and its Representatives may contact any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations Person in writing (with a request that any response from such Third Party conducted prior to the date of this Agreement Person is in writing) with respect to an Acquisition Proposal to clarify any ambiguous terms and conditions thereof which are necessary to determine whether the Acquisition Proposal.
Proposal constitutes a Superior Proposal (b) Notwithstanding Section 5.04(awithout the Company Board being required to make the determination in the following proviso), at it being agreed that if the Company Board receives any time clarifications from such Third Person, the date of this Agreement Proposal Notice Period will not be deemed commenced until consummation of such clarifications are provided to Parent; provided, however, that the Closing, if Seller receives Company Board (or a bona fide written committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from either constitutes a breach of Section 5.04(a) and that the Board of Directors of Seller Superior Proposal or would reasonably believes would be expected to likely lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.4(c) would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable Law; and after providing written notice provided further, that the Company will provide to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently (but in no event later than forty-eight (48) hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (RealPage, Inc.)
Superior Proposals. (a) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating Notwithstanding anything to the Sold Entities or the Securities or afford access to the businesscontrary contained in this Agreement, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), if at any time from and after the date of this Agreement until consummation of No-Shop Period Start Date and prior to obtaining the ClosingCompany Stockholder Approval, if Seller the Company receives a bona fide written Acquisition Company Takeover Proposal made after the date of this Agreement from any Person that was unsolicited and did not otherwise result from a breach of Section 5.04(a6.4(b) (other than any breach that is both immaterial and unintentional), and if the Company Board determines in good faith, in its reasonable discretion after consultation with its independent financial advisors and/or outside legal counsel, (x) that the Board of Directors of Seller such Company Takeover Proposal constitutes or would reasonably believes would be expected to lead to a Company Superior Proposal, Seller and (y) failure to take the actions set forth in clauses (A) and (B) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, directly or indirectly through its Representatives, subject in response to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actionsCompany Takeover Proposal, (iA) negotiate the terms offurnish, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, information (iiiincluding non-public information) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to the Company and its Subsidiaries to the Person that has made such Acquisition written Company Takeover Proposal and its Representatives; provided that the Board of Directors of Seller reasonably determines constitutes competitively sensitive information or data provided to any such Person who is a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing competitor of the existence of any proposal or inquiry received after the date of this Agreement by Seller Company or any of its subsidiaries Subsidiaries will only be provided in a separate “clean data room” and subject to customary “clean team” arrangements regarding access to such information or its or their Representatives with respect to any Acquisition Proposaldata (provided, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board Company shall, prior to or substantially concurrently with the delivery to such Person, provide to Parent any material non-public information concerning the Company or any of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has its Subsidiaries that is provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent Person or its Representatives unless such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior ProposalParent) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged engage in good faith or otherwise participate in discussions or negotiations with Buyer to amend this Agreement in the Person making such a manner that Company Takeover Proposal and its Representatives regarding such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Company Takeover Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Tech Data Corp)
Superior Proposals. (aNotwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Company’s receipt of the Requisite Stockholder Approval, subject to compliance with this Section 5.3(b) Subject to Section 5.04(band Sections 5.3(c)(ii), neither Seller nor any of its subsidiaries 5.3(d) and 5.3(e), the Company and the Company Board (including the Selling Subsidiariesor a committee thereof) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Third Party Person or such Person’s Representatives that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve renewed or resolve delivered to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to the Company an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date that did not result from a breach of this Agreement with respect to any Acquisition Proposal.
(bSection 5.3) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited Agreement, and did not otherwise result from a breach of Section 5.04(afacilitate such Acquisition Proposal or assist such Person (and such Person’s Representatives and financing sources) and with such Acquisition Proposal if requested by such Person, in each case with respect to an Acquisition Proposal that the Company Board of Directors of Seller has determined in good faith (after consultation with its financial advisors and outside legal counsel) (i) either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention that the failure to take any such actions, (i) negotiate action would be inconsistent with the terms of, Board’s fiduciary duties under applicable Law and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of this Section 5.04(a) 5.3; provided, that subject to applicable Law and any applicable “clean team” or similar arrangement, the Board of Directors of Seller (whether at the time of receipt or after Company shall provide to Parent, Proton Parent and Merger Sub any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has non-public information, data and/or access that is provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer any Person given such information, data and/or access that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or was not previously made available to Parent, Proton Parent or Merger Sub prior to or promptly (and in any event within 24 hours) following the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Poshmark, Inc.)
Superior Proposals. In the event that any Person or Group submits to the Company (aand does not withdraw) Subject an unsolicited, written Acquisition Proposal that the Company Board concludes in good faith (after consultation with its outside legal counsel and a financial advisor of national standing) is, or could reasonably be expected to lead to, a Superior Proposal, then, notwithstanding anything to the contrary in Section 5.04(b5.3(a), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shallCompany may, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Personso long as the Company Stockholder Approval has not yet been obtained, (i) solicit, initiate enter into discussions with such Person or knowingly take any action to facilitate or encourage the submission of any Group regarding such Acquisition Proposal, Proposal and (ii) enter into deliver or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish make available to such Third Party or its Representatives or financing sources Person non-public information relating to regarding the Sold Entities pursuant to an Acceptable Confidentiality AgreementCompany and the Subsidiaries; provided that, in each such case, the Company, the Subsidiaries and the Company Representatives shall have complied with each of the following: (A) none of the Company, the Subsidiaries or any Company Representative shall have violated this Section 5.3 in any material respect, (iiiB) engage the Company Board first shall have concluded in negotiations or discussions good faith (after consultation with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(aoutside legal counsel) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends failure to take such action and specifying would be inconsistent with its fiduciary obligations to the reasons therefor;
Company’s stockholders under Applicable Legal Requirements, (iiiC) Seller has prior to making available to any such Person any material non-public information, the Company first shall have received from such Person an executed Acceptable Confidentiality Agreement (a copy of which executed Acceptable Confidentiality Agreement shall be provided to Buyer all material documentation Parent, for informational purposes only, within one Business Day of its execution) and (D) prior to or contemporaneously with delivering or making available any such non-public information to such Person, the Company shall have delivered or made available such non-public information to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal Parent (to the extent such documentation and non-public information has not previously been previously provided delivered or made available by the Company to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwiseParent).
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to contrary set forth in this Agreement, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notmay, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany Group pursuant to an Acceptable Confidentiality Agreement to any Person that has made or delivered to the Company an Acquisition Proposal after the date hereof or to any such Person’s Affiliates, Representatives, and financing sources, and otherwise facilitate such Acquisition Proposal or otherwise cooperate in any way withprovide other due diligence information about the Company Group to assist such Person (and its Affiliates, any Third Party that is seeking to makeRepresentatives, or has made, an and financing sources) with such Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any breach of Section 5.04(a) and 6.2(a); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 6.2(c) would be or would reasonably be expected to be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly, and in any event within twenty-four (24) hours, make available to Buyer of its intention Parent any non-public information concerning the Company Group that is provided to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party Person or its Affiliates, Representatives or financing sources non-public information relating that was not previously made available to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller Parent or any of its subsidiaries Affiliates, Representatives, or its or financing sources, acting in their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposalcapacity as such.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:
Appears in 1 contract
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, until the Company’s receipt of the Requisite Stockholder Approval, the Company and the Company Board (aor a committee thereof) Subject to Section 5.04(b)may, neither Seller nor any directly or indirectly, through one or more of its subsidiaries their Representatives (including the Selling Subsidiaries) shallAdvisor), and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants participate or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, the Company an Acquisition ProposalProposal after the No-Shop Period Start Date, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives and financing sources) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.3(b); provided, however, that the Company Board of Directors of Seller (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly and the Company Board (or indirectly through a committee thereof) has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be inconsistent with its fiduciary obligations pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Ellie Mae Inc)
Superior Proposals. (a1) Subject to Section 5.04(b), neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third If a Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to receives an Acquisition Proposal that constitutes a Superior Proposal or any Person or group of Persons (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) other Party or (iv) waive, terminate, modify any affiliate or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation joint actor of the Closing, if Seller receives a bona fide written other Party) announces such an Acquisition Proposal made after the date in respect of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposalsuch Party prior, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on case of Adam, to obtaining the Adam Shareholder Approval, or in the case of Thor, to obtaining the Thor Shareholder Approval, such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates may (an “Acceptable Confidentiality Agreement”), (iix) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage make a Change in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement Recommendation with respect to such Acquisition Superior Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
and/or (cy) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d8.2(1)(c)(iii) unless[Adam Superior Proposal Termination] (in Adam’s case) or Section 8.2(1)(d)(iii) [Thor Superior Proposal Termination] (in Thor’s case) (each of (x) and (y), a “Superior Proposal Action”), in each case, if and only prior to such Superior Proposal Action:
(ia) Seller has received a bona fide written the board of directors of the Party determines, in good faith after consultation with its outside financial and legal advisors, that the Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines received by such Party constitutes a Superior ProposalProposal and the failure by the relevant Party’s board of directors to take such Superior Proposal Action would be inconsistent with its fiduciary duties;
(iib) Seller such Party has provided been, and continues to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons thereforbe, in material compliance with its obligations under Article 6;
(iiic) Seller such Party has provided to Buyer all material documentation and information delivered or made available to the Third other Party making any Acquisition Proposal with a notice in connection with such Acquisition Proposal writing (to the extent such documentation and information has not been previously provided to Buyer); and
(ivx) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer there is a Superior Proposal; (y) confirming the determination by such Party’s board of directors of the value and financial terms that such board of directors, in consultation with its financial and legal advisors, has determined should be ascribed to any non-cash consideration offered under such Superior Proposal; and (Cz) enclosing all documentation related to and detailing the Superior Proposal, including a copy of any agreement relating to such Superior Proposal and all supporting materials and related agreements or documents (including any financing documents supplied to such Party in connection therewith);
(d) at least five (5) Business Days (the end “Response Period”) shall have elapsed from the date the other Party received the notice and all of the documentation referred to in Section 6.4(1)(c) from such three Business Day periodParty;
(e) during any Response Period, the other Party has had the opportunity (but not the obligation), in accordance with Section 6.4(2), to offer to amend the terms of the Transaction and this Agreement in order for such Acquisition Proposal to cease to be a Superior Proposal; and
(f) if the other Party has not been withdrawn proposed to amend the terms of the Arrangement and the Board Transaction in accordance with Section 6.4(2), such Party’s board of Directors reasonably believes directors shall have determined, in good faith, after consultation with its financial and legal advisors, that such Acquisition Proposal continues to constitute is a Superior Proposal (taking into account any changes compared to the proposed amendment to the terms of the Arrangement and the Transaction by the other Party.
(2) During the Response Period or such longer period as such Party may approve for such purpose, the other Party shall have the opportunity, but not the obligation, to propose to amend the terms of the Transaction and this Agreement and if the other Party proposes to amend the terms of the Transaction and this Agreement: (a) the Thor Board or the Adam Board, as applicable, shall, in good faith and in consultation with its financial and legal advisors, review any proposal by the other Party to amend the terms of the Transaction and this Agreement; and (b) such Party such shall negotiate, and cause its Representatives to negotiate, in good faith with the other Party to make such amendments to the terms of this Agreement proposed by Buyer following a Notice, and the Transaction as a result of would enable the negotiations between Buyer and Seller pursuant other Party to clause (B) or otherwise)proceed with the Transactions on such amended terms.
(e3) For If the Thor Board or the Adam Board, as applicable, after consultation with its financial and legal advisors, determines that an Acquisition Proposal previously constituting a Superior Proposal has ceased to be a Superior Proposal as compared to the proposed amendments to the terms of this Agreement and the Transaction: (a) such Party will promptly so advise the other Party; (b) the Parties shall amend this Agreement and the Plan of Arrangement to reflect such offer made by the other Party, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing; and (c) the Thor Board or the Adam Board, as applicable, shall promptly (and in any event within one (1) Business Day following the effectiveness of any such amendment) reaffirm the Thor Board Recommendation or the Adam Board Recommendation, as applicable, by press release, and such Party shall provide the other Party and its legal counsel with a reasonable opportunity to review the form and content of any such press release and shall give reasonable consideration to such amendments to such press release requested by the other Party and its legal counsel.
(4) Each successive modification of any Acquisition Proposal that results in an increase in, or a modification to, the consideration (or value of such consideration) to be received by a Party or its shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Agreement:Article 6, and the other Party shall be afforded a new Response Period in respect of each such Acquisition Proposal from the date on which such Party received the received the notice and documentation referred to in Section 6.4(1)(c) in respect of such new Acquisition Proposal.
Appears in 1 contract
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b)5.3, neither Seller nor any until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallCompany Stockholder Approval, and Seller shall cause its subsidiaries the Company and its Subsidiaries and their officers, directors, employees, investment bankers, attorneys, accountants, consultants the Company Board (or other agents or advisors (“Representatives”a committee thereof) to notmay, directly or indirectly indirectly, through another Personone or more of their Representatives, (i) solicitcontact any Third Party in writing (with a request that any response from such Third Party is in writing) with respect to an Acquisition Proposal submitted by such Third Party to clarify any ambiguous terms and conditions thereof that are necessary to determine whether the Acquisition Proposal constitutes or would reasonably be likely to lead to a Superior Proposal (without the Company Board being required to make the determination in the following clause (ii)(y)), initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, and (ii) enter into participate or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any way with, any Third Party Person or its Representatives that is seeking has made or delivered to make, or has made, an the Company a bona fide Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives, prospective debt and equity financing sources and/or their respective Representatives) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case (x) with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to that was not the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision result of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a material breach of Section 5.04(a5.3(a) and (y) only if the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the Board of Directors of Seller reasonably believes such Acquisition Proposal either constitutes a Superior Proposal or would be expected reasonably likely to lead to a Superior Proposal; provided, Seller mayhowever, directly or indirectly through its Representatives, subject that the Company will provide to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer Parent and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources any non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to given such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement access that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to Parent prior to or substantially concurrently (but in no event later than twenty-four (24) hours after) the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously time it is provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Person.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Tenneco Inc)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary contained in this Agreement, if at any time from and after the date hereof and prior to obtaining the Company Stockholder Approval, the Company receives an unsolicited written Company Takeover Proposal that is not withdrawn from any Person that did not result from a material breach of Section 5.04(b6.4(a), neither Seller nor any and if the Company Board (after considering the recommendation of its subsidiaries (including the Selling SubsidiariesCompany Special Committee) shallhas determined in good faith, after consultation with the Company’s independent financial advisor and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Personoutside legal counsel, (i) solicitthat such Company Takeover Proposal is bona fide and constitutes or could reasonably be expected to lead to a Company Superior Proposal, initiate or knowingly and (ii) failure to take any action the actions set forth in clauses (A) and (B) below would be inconsistent with its fiduciary duties under applicable Law, then the Company and its Representatives may, in response to facilitate or encourage the submission of any Acquisition such Company Takeover Proposal, (iiA) enter into or participate in any discussions or negotiations withfurnish, furnish any pursuant to an Acceptable Confidentiality Agreement, information relating (including non-public information) with respect to the Sold Entities or the Securities or Company and its Subsidiaries and afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities toCompany or any of its Subsidiaries to the Person that has made such written Company Takeover Proposal and its Representatives (provided that the Company shall, prior to or concurrently with the delivery to such Person, provide to Parent any information concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its Representatives unless such information has been previously provided to Parent) and (B) engage in or otherwise cooperate participate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with the Person making such Company Takeover Proposal and its Representatives regarding such Company Takeover Proposal; provided that the Company and its Representatives may contact any Third Party conducted prior to the date of this Agreement Person in writing (with a request that any response from such Person is in writing) with respect to a Company Takeover Proposal to clarify any Acquisition Proposal.
ambiguous terms and conditions thereof which are necessary to determine whether the Company Takeover Proposal constitutes a Company Superior Proposal (bwithout the Company Board (or any committee thereof, including the Company Special Committee) Notwithstanding Section 5.04(a), at any time from being required to make the date of this Agreement until consummation of determination in the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, foregoing clauses (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii)). The Company shall promptly (and in any event within twenty-four (24) furnish to such Third Party or its Representatives or financing sources non-public information relating to hours) notify Parent in writing if the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with Company Board makes the procedures determinations set forth in this Section 5.04(c6.4(b), and shall not take any of the actions set forth in clauses (A) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during prior to providing such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)notice.
(e) For purposes of this Agreement:”
Appears in 1 contract
Superior Proposals. (a) Subject Notwithstanding anything to the contrary in Section 5.04(b5.3(a), neither Seller nor any from the date of its subsidiaries (including this Agreement and continuing until the Selling Subsidiaries) shallreceipt of Company Stockholder Approval, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company may, directly or indirectly through another Personone (1) or more of its Representatives, (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b)to, subject any Person (and its Representatives and potential financing sources) that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Company an Acquisition Proposal made after the date of this Agreement only if (i) the Company Board has determined in good faith (after consultation with the Company’s financial advisor and outside legal counsel) that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller such Acquisition Proposal constitutes, or would reasonably believes would be expected to lead to to, a Superior Proposal, Seller may(ii) the Company Board has determined in good faith (after consultation with the Company’s outside legal counsel) that the failure to do so would be, directly or indirectly through would reasonably be likely to be, inconsistent with its Representativesfiduciary duties pursuant to applicable Law, and (iii) prior to furnishing any non-public information to such Person, the Company receives from such Person an executed Acceptable Confidentiality Agreement; provided, that, subject to compliance with this Section 5.04 applicable Law, the Company shall promptly make available to Parent and after providing written notice to Buyer Merger Sub any non-public information concerning the Company or any of its intention Subsidiaries that is provided to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party Person or its Representatives or potential financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iiithis Section 5.3(b) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with Parent and Merger Sub prior to, or simultaneously with, furnishing such Acquisition Proposal (information to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms Person or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) its Representatives or otherwise)potential financing sources.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Eventbrite, Inc.)
Superior Proposals. (a) Subject Prior to Section 5.04(b)the Effective Date, neither Seller nor any of its subsidiaries (including the Selling Subsidiaries) shall, and Seller shall cause its subsidiaries NAN and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants advisors or other representatives or agents or advisors (“Representatives”) to notmay enter into, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate in any in, discussions or negotiations with, furnish any information relating with a person who seeks to the Sold Entities initiate such discussions or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b)negotiations and, subject to the requirements set forth in entering into by such Section) or (iv) waive, terminate, modify or fail to enforce any provision person of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with on terms and conditions no less restrictive in favourable to N▇▇ and no more favourable to the aggregate on such Third Party as other person than the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) may furnish to such Third Party or person information concerning it and its Representatives or financing sources non-public information relating business, properties and assets, in each case if, and only to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unlessextent that:
(i) Seller such person has received first made a bona fide written Acquisition Proposal made after the date of this Agreement in writing that was unsolicited and did not otherwise result from a breach solicited by NAN or its representatives in violation of Section 5.04(a) that 6.2 in any material respect, which the NAN Board of Directors of Seller (whether at the time of receipt or determines in good faith, after any negotiations or discussions consultation with respect thereto its financial advisors and legal counsel, would, if consummated in accordance with Section 5.04(b)(iii)) its terms, be reasonably determines constitutes likely to result in a Superior Proposal;
(ii) Seller the NAN Board, after receiving the advice of outside legal counsel, has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer determined in good faith that Seller intends the failure to take such action and specifying the reasons therefor;would be inconsistent with its fiduciary duties; and
(iii) Seller it has provided to Buyer all material documentation PNR the information required to be provided under Section 8.1(b) in respect of such Acquisition Proposal and information delivered or made available to has promptly notified PNR in writing of the Third Party making determinations in Sections 8.1(a)(i) and 8.1(a)(ii) above.
(b) NAN shall promptly (and, in any event, within two calendar days) notify PNR, at first verbally and then in writing, of any Acquisition Proposal received after the date hereof, or any confidentiality agreement entered into in connection with respect of any such Acquisition Proposal and any enquiry or contact received after the date hereof that could reasonably be expected to lead to an Acquisition Proposal, or any request for non-public information relating to it received after the date hereof or for access to its properties, books or records by any person that informs NAN that such person is considering making, or has made, an Acquisition Proposal after the date hereof; which notice will include any known terms and conditions of such Acquisition Proposal (including any form of agreement proposed to be entered into) and shall indicate such details, to the extent known, of the Acquisition Proposal, enquiry or contact as PNR may reasonably request, including the identity of the person making such documentation proposal, enquiry or contact. NAN shall keep PNR informed of the status, including any change to the material terms, of any such Acquisition Proposal or enquiry. In addition, NAN shall provide PNR with a list of, or copies of, the information provided to any person in respect of which a confidentiality agreement is entered into in respect of any Acquisition Proposal pursuant to Section 8.1(a), and shall provide PNR with a copy of the confidentiality agreement entered into in accordance with Section 8.1(a) and with access to any information provided to any such person which has not already been previously provided to Buyer); andPNR.
(ivc) (A) In the Notice includes event that N▇▇ is in receipt of a Superior Proposal, it shall give PNR, verbally and in writing, at least five Business Days advance notice of any decision by the NAN Board to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, which notice shall confirm that the NAN Board has determined that such Acquisition Proposal constitutes a Superior Proposal, shall identify the person making the Superior Proposal and shall provide a true and complete copy thereof and any amendments thereto. During such five Business Day period, N▇▇ agrees not to accept, approve or enter into any agreement to implement such Superior Proposal and shall not modify or change its recommendation in respect of the Amalgamation. In addition, during such five Business Day period, NAN shall, and shall cause its financial and legal advisors to, negotiate in good faith with PNR and its financial and legal advisors to make such adjustments in the terms and conditions of this Agreement as would enable NAN to proceed with the Acquisition Proposal Amalgamation as amended rather than the Superior Proposal. In the event that is the basis of the proposed termination by Seller (and PNR proposes to amend this Agreement to provide that the NAN Shareholders shall receive a value per share equal to, or having a value greater than, the value per share provided in the Superior Proposal and so advises the NAN Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment prior to the financial terms or any material amendment to any other material term expiry of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three five Business Day period, if requested by Buyerthe NAN Board shall not accept, Seller has engaged recommend, approve or enter into any agreement to implement such Superior Proposal and shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, modify or change its recommendation in good faith negotiations with Buyer respect of the Amalgamation. If the NAN Board continues to amend this Agreement in such a manner believe that such Acquisition Superior Proposal which was determined to constitute remains a Superior Proposal no longer is and therefore rejects PNR's amended proposal, NAN may terminate this Agreement, provided however, that NAN must pay to PNR the Non-Completion Fee in accordance with Section 5.1(f) and Section 8.2.
(d) NAN also acknowledges and agrees that each successive modification of any Acquisition Proposal shall constitute a Superior Proposal; and (Cnew Acquisition Proposal for purposes of the requirement under Subsection 8.1(c) at the end of such three to initiate an additional five Business Day notice period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes PNR agrees that all information that may be provided to it by N▇▇ with respect to any Acquisition Proposal pursuant to this Section 8.1 shall be treated as if it were "Confidential Information" as that term is defined in the Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Confidentiality Agreement or in order to enforce its rights under this Agreement in legal proceedings.
(f) If required by PNR, NAN shall, subsequent to the five Business Day notice period contemplated by Section 8.1(c), reaffirm its recommendation of the Amalgamation by news release promptly, and in any event, within two Business Days of being requested to do so by PNR, in the event that:
(i) any Acquisition Proposal which is publicly announced is determined not to be a Superior Proposal; or
(ii) the Parties have entered into an amended agreement pursuant to Section 8.1(c) which results in any publicly announced Acquisition Proposal not being a Superior Proposal.
(g) NAN shall ensure that its officers and directors and any brokers, investment bankers, advisors, agents or other representatives retained by it are aware of the provisions of this AgreementSection 8.1. N▇▇ shall be responsible for any breach of this Section 8.1 by its officers, directors, brokers, investment bankers, advisors, agents or representatives.
(h) For greater certainty, nothing in this Agreement shall prohibit the NAN Board from:
(i) making any disclosure of an Acquisition Proposal to the NAN Shareholders prior to the Effective Time if, in the good faith judgment of the NAN Board after receiving the advice of outside legal counsel, such disclosure is necessary for the NAN Board to act in a manner consistent with its fiduciary duties or is otherwise required under applicable law;
(ii) taking any other action with regard to an Acquisition Proposal to the extent ordered or otherwise mandated by any court of competent jurisdiction; and
(iii) responding to a bona fide request for information that could reasonably be expected to lead to an Acquisition Proposal solely by advising that no information can be provided unless a bona fide written Acquisition Proposal is made and then only in compliance with Section 8.1(a).
Appears in 1 contract
Sources: Amalgamation Agreement (Premium Nickel Resources Ltd.)
Superior Proposals. Notwithstanding Section 5.3(a) (a) Subject but subject to the other limitations in this Section 5.04(b5.3(b)), neither Seller nor at any time from the No-Shop Period Start Date until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallRequisite Stockholder Approval, the Company and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company Board may, directly or indirectly through another Personone or more of their Representatives (including the Company Financial Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities Company Group solely pursuant to, or otherwise cooperate in any way withand only following execution of, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide written Acquisition Proposal made after the date of this Agreement and solely to the extent that was unsolicited and (i) such Acquisition Proposal did not otherwise result from a breach of Section 5.04(a5.3, (ii) the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the Board of Directors of Seller such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller mayand (iii) prior to taking such action, directly or indirectly through the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to take the actions contemplated by this Section 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Law; provided, however, that the Company shall promptly (and in any event within twenty-four (24) hours thereafter) make available to Parent and its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take as applicable, any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating that is provided to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations any such Person or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Innovid Corp.)
Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, except as may relate to any Excluded Party (abut only for so long as such Person or group of Persons is an Excluded Party) Subject to Section 5.04(b)until the Cut-off Date, neither Seller nor any after the Go-Shop Period End Date until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallRequisite Stockholder Approval, the Company and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company Board may, directly or indirectly through another Personone or more of their Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities Company or the Securities any of its Subsidiaries to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company or otherwise cooperate in any way with, any Third Party that is seeking of its Subsidiaries pursuant to make, or has made, an Acquisition Proposal, (iii) enter into, approve or resolve to approve or publicly propose to approve any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject any Person or its Representatives that has made or delivered to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives Company a bona fide written Acquisition Proposal made after the date of this Agreement Agreement, or otherwise facilitate or assist such Acquisition Proposal or assist such Person (and its Representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such Person), in each case with respect to an Acquisition Proposal that was unsolicited and did not otherwise result from a solicited in material breach of Section 5.04(a) and 5.3(b); provided, however, that the Company Board of Directors of Seller has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly or indirectly through and the Company Board has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be inconsistent with its fiduciary duties pursuant to applicable law; and after providing written notice provided further, however, that the Company will promptly (and in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to concerning the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party Company and its Representatives and financing sources and (iv) subject Subsidiaries that is provided to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to any such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries Person or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or previously made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)Parent.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Blue Nile Inc)
Superior Proposals. (a) Subject Notwithstanding anything to the contrary set forth in this Section 5.04(b)5.3, neither Seller nor any from the No-Shop Period Start Date until the Company’s receipt of its subsidiaries (including the Selling Subsidiaries) shallRequisite Shareholder Approval, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to notthe Company may, directly or indirectly through another Personone or more of its Representatives (including the Advisor), (i) solicit, initiate participate or knowingly take any action to facilitate or encourage the submission of any Acquisition Proposal, (ii) enter into or participate engage in any discussions or negotiations with, furnish any non-public information relating to the Sold Entities or the Securities Company Group to, or afford access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Sold Entities to, Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or otherwise cooperate in any way with, any Third Party its Representatives that is seeking has made or delivered to make, or has made, the Company an Acquisition ProposalProposal after the No-Shop Period Start Date, and otherwise facilitate such Acquisition Proposal or assist such Person (iiiand its Representatives and financing sources) enter intowith such Acquisition Proposal (in each case, approve or resolve to approve or publicly propose to approve any agreement if requested by such Person), in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related each case with respect to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(b), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation of the Closing, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a any material breach of Section 5.04(a) and 5.3(b); provided, however, that the Company Board of Directors of Seller has determined in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably believes would be expected likely to lead to a Superior Proposal, Seller may, directly or indirectly through and the Company Board has determined in good faith (after consultation with its Representatives, subject financial advisor and outside legal counsel) that the failure to compliance with take the actions contemplated by this Section 5.04 5.3(c) would be reasonably likely to be inconsistent with its fiduciary duties pursuant to applicable law; provided further, however, that the Company will promptly (and after providing written notice in any event within 24 hours) make available to Buyer of its intention to take Parent any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to Parent; provided further, however, that if any such Person or its Representatives is a competitor of the Sold Entities pursuant Company Group, the Company Group shall not provide any information that in the good faith determination of the Company constitutes commercially sensitive non-public information to an Acceptable Confidentiality Agreement, (iii) engage such Person in negotiations or discussions connection with any Third Party and its Representatives and financing sources and (ivactions permitted by this Section 5.2(d) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) and the identity of the Person making any such proposal, inquiry or Acquisition Proposal.
(d) Notwithstanding anything herein to the contrary, Seller shall not be entitled to exercise its right to terminate this Agreement pursuant to Section 11.01(d) unless:
(i) Seller has received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto other than in accordance with Section 5.04(b)(iii)) reasonably determines constitutes a Superior Proposal;
(ii) Seller has provided “clean room” or other similar procedures designed to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends to take limit any potential adverse effect on the Company from sharing such action and specifying the reasons therefor;
(iii) Seller has provided to Buyer all material documentation and information delivered or made available to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer); and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise)information.
(e) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Chico's Fas, Inc.)
Superior Proposals. (a) Subject to Section 5.04(b), neither Seller Neither IAMGOLD nor any of its subsidiaries (including the Selling Subsidiaries) directors shall, and Seller shall cause its subsidiaries and its and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents or advisors (“Representatives”) to not, directly or indirectly through another Person, (i) solicit, initiate or knowingly take any action to facilitate or encourage the submission in respect of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Sold Entities or the Securities or afford access to the business, properties, assets, books or records of the Sold Entities to, or otherwise cooperate in any way with, any Third Party that is seeking to make, or has made, an Acquisition Proposal, (iii) enter intoaccept, approve or resolve to approve recommend or publicly propose to approve enter into any agreement in principle, letter respect of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument or agreement constituting or related to an such Acquisition Proposal unless:
(other than an Acceptable Confidentiality Agreement permitted pursuant to Section 5.04(ba) the directors of IAMGOLD have determined in good faith that such Acquisition Proposal constitutes a Superior Proposal (as hereinafter defined), subject to the requirements set forth in such Section) or (iv) waive, terminate, modify or fail to enforce any provision of any “standstill” or similar obligation of any Third Party. Seller shall, and shall cause its subsidiaries and each of its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Proposal.;
(b) Notwithstanding Section 5.04(a), at any time from the date of this Agreement until consummation Gold Fields has been provided with a copy of the Closingdocument containing such Superior Proposal (with such deletions as are necessary to protect any confidential portions of such document, if Seller receives a bona fide written Acquisition Proposal made after the date of this Agreement provided that was unsolicited and did not otherwise result from a breach of Section 5.04(a) and that the Board of Directors of Seller reasonably believes would be expected to lead to a Superior Proposal, Seller may, directly or indirectly through its Representatives, subject to compliance with this Section 5.04 and after providing written notice to Buyer of its intention to take any such actions, (i) negotiate the terms of, and enter into, a confidentiality agreement with terms and conditions no less restrictive in the aggregate on such Third Party as the Confidentiality Agreement is on Buyer and its Affiliates (an “Acceptable Confidentiality Agreement”), (ii) furnish to such Third Party or its Representatives or financing sources non-public information relating to the Sold Entities pursuant to an Acceptable Confidentiality Agreement, (iii) engage in negotiations or discussions with any Third Party and its Representatives and financing sources and (iv) subject to compliance with the procedures set forth in Section 5.04(c) and (d) and Section 11.01(d), terminate this Agreement to enter into a definitive agreement with respect to such Acquisition Proposal that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal.
(c) Seller will as promptly as practicable advise Buyer orally and in writing of the existence of any proposal or inquiry received after the date of this Agreement by Seller or any of its subsidiaries or its or their Representatives with respect to any Acquisition Proposal, the material terms and conditions of any such proposal or inquiry or Acquisition Proposal (including any changes thereto) of, and the identity of the Person making any person making, such proposal, inquiry or Acquisition Proposal.Superior Proposal may not be deleted);
(dc) Notwithstanding anything herein five business days have elapsed from the later of the date on which Gold Fields received notice of the determination of IAMGOLD to accept, approve or recommend or to enter into an agreement in respect of such Superior Proposal and the contrarydate Gold Fields received a copy of the Superior Proposal, Seller shall and (A) Gold Fields has not, within such five business day period, made an offer in writing to amend this agreement which purports to at least match the Superior Proposal (a “Matching Offer”) or (B) Gold Fields has made a Matching Offer and the directors of IAMGOLD determine (which determination need not be entitled to exercise made within such five day period) in good faith, after consultation with and receiving advice from, as appropriate, their respective financial, legal and other advisors, that such Matching Offer would not, if consummated in accordance with its right to terminate this Agreement pursuant to Section 11.01(d) unlessterms, result in a transaction:
(i) Seller has which is equivalent or superior, from a financial point of view, to IAMGOLD to the Superior Proposal (and IAMGOLD shall have received a bona fide written Acquisition Proposal made after the date of this Agreement that was unsolicited and did not otherwise result opinion from a breach of Section 5.04(a) that the Board of Directors of Seller (whether at the time of receipt or after any negotiations or discussions with respect thereto in accordance with Section 5.04(b)(iiiits financial advisers substantially to such effect)) reasonably determines constitutes a Superior Proposal;; or
(ii) Seller has provided the acceptance of which by ▇▇▇▇▇▇▇, having regard to Buyer three Business Days’ prior written notice (a “Notice”) advising Buyer that Seller intends all of the then prevailing circumstances, would be most likely to take such action and specifying result in the reasons thereforperformance by the directors of IAMGOLD of their fiduciary obligations under Legal Requirements;
(iiid) Seller if Gold Fields has provided elected not to Buyer all material documentation and information delivered match the Superior Proposal or if an offer made available by Gold Fields under subparagraph 14(c) hereof is not accepted by IAMGOLD, IAMGOLD terminates this agreement pursuant to the Third Party making any Acquisition Proposal in connection with such Acquisition Proposal (to the extent such documentation and information has not been previously provided to Buyer)paragraph 16 hereof; and
(iv) (A) the Notice includes the terms and conditions of the Acquisition Proposal that is the basis of the proposed termination by Seller (and that the Board of Directors of Seller reasonably determines constitutes a Superior Proposal) and the identity of the Third Party making the proposal (it being understood and agreed that any amendment to the financial terms or any material amendment to any other material term of such Acquisition Proposal shall require a new Notice and a new three Business Day period); (B) during such three Business Day period, if requested by Buyer, Seller has engaged in good faith negotiations with Buyer to amend this Agreement in such a manner that such Acquisition Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal; and (C) at the end of such three Business Day period, such Acquisition Proposal has not been withdrawn and the Board of Directors reasonably believes that such Acquisition Proposal continues to constitute a Superior Proposal (taking into account any changes to the financial and other terms of this Agreement proposed by Buyer following a Notice, as a result of the negotiations between Buyer and Seller pursuant to clause (B) or otherwise).
(e) For purposes of this Agreement:IAMGOLD makes the payment contemplated by, and in accordance with, paragraph 15 hereof.
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Sources: Sale Agreement (Iamgold Corp)