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abridged | contract_88 | “Knowledge” means the actual knowledge of (i) for Parent, the Persons listed on Exhibit B (the “Parent Knowledge Persons”) and (ii) for the Company, the Persons listed on Exhibit C (the “Company Knowledge Persons”), in each case, following reasonable inquiry of their direct reports; provided that none of the Parent Knowledge Persons or Company Knowledge Persons shall have any personal liability or obligations hereunder regarding such knowledge. (Page 41) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_88 | “Knowledge” means the actual knowledge of <omitted> (ii) for the Company, the Persons listed on Exhibit C (the “Company Knowledge Persons”) (Page 41) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_89 | “Knowledge” means (i) with respect to the Company, the actual knowledge of any of the Persons set forth in Section 9.05 of the Company Disclosure Letter and (Page 72) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_89 | “Knowledge” means <omitted> the actual knowledge of any of the Persons set forth in Section 9.05 of the Company Disclosure Letter (Page 72) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_85 | “Knowledge” means (a) with respect to Parent, the actual knowledge, assuming due inquiry, of any of the Persons set forth in Section 9.4 of the Parent Disclosure Schedule and (b) with respect to the Company, the actual knowledge, assuming due inquiry, of any of the Persons set forth in Section 9.4 of the Company Disclosure Schedule. (Page 74) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_85 | “Knowledge” means <omitted> the actual knowledge <omitted> of any of the Persons set forth in Section 9.4 of the Company Disclosure Schedule. (Page 74) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_86 | “knowledge” means, (a) with respect to the Company, the actual (but not constructive or imputed) knowledge of the individuals listed in Section 1.01 of the Company Disclosure Letter, after making reasonable inquiry, as of the date hereof (Page 32) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_86 | “knowledge” means <omitted> the actual (but not constructive or imputed) knowledge of the individuals listed in Section 1.01 of the Company Disclosure Letter (Page 32) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_95 | “Knowledge” means with respect to (a) NIC, that any of Harry H. Herington, Stephen M. Kovzan, Jayne Friedland Holland, or William A. Van Asselt is actually aware of the particular fact or matter, and (Page 61) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_95 | “Knowledge” means with <omitted> that any of Harry H. Herington, Stephen M. Kovzan, Jayne Friedland Holland, or William A. Van Asselt is actually aware of the particular fact or matter (Page 61) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_108 | “knowledge” of any Party means (i) with respect to Parent, the actual knowledge of Mark Berg, Rich Dealy, Mark Kleinman and Margaret Montemayor, and (ii) with respect to the Company, the actual knowledge of Matt Gallagher, Ryan Dalton, David Dell’Osso, Stephanie Reed and Colin Roberts. (Page 109) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_108 | “knowledge” of any Party means <omitted> the actual knowledge of Matt Gallagher, Ryan Dalton, David Dell’Osso, Stephanie Reed and Colin Roberts. (Page 109) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_109 | “knowledge” of the Company means the actual knowledge of any of the officers of the Company listed on Section 9.6 of the Company Disclosure Schedule, (Page 74) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_109 | “knowledge” <omitted> means the actual knowledge of any of the officers of the Company listed on Section 9.6 of the Company Disclosure Schedule, (Page 74) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_111 | “Knowledge” of the Company, with respect to any matter in question, means the actual knowledge of the Company’s Chief Executive Officer; Chief Financial Officer; Chief Revenue Officer; Chief Marketing Officer; Chief People Officer; Chief Technology Officer and Chief Legal Officer, in each case after reasonable inquiry of those employees who would reasonably be expected to have actual knowledge of the matter in question. (Page 14) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_111 | “Knowledge” of the Company, with respect to any matter in question, means the actual knowledge of the Company’s Chief Executive Officer; Chief Financial Officer; Chief Revenue Officer; Chief Marketing Officer; Chief People Officer; Chief Technology Officer and Chief Legal Officer (Page 14) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_112 | “Knowledge” means, with respect to Peoples, the Knowledge of any officer of Peoples with the title of Chief Executive Officer, President, Executive Vice President of Operations, or Chief Financial Officer, and, with respect to Premier Financial, the Knowledge of any officer of Premier Financial, Citizens Bank or Premier Bank with the title of Chairman, Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, Chief Credit Officer, Chief Lending Officer, President of Citizens Bank, Compliance officer for Citizens Bank, the President of Premier Bank, or the Compliance Officer for Premier Bank. An officer of Peoples or Premier Financial shall be deemed to have “Knowledge” of a particular fact or matter if such officer is actually aware of such fact or matter or a prudent individual would be reasonably expected to discover or otherwise become aware of such fact or matter in the course of conducting a reasonably comprehensive investigation concerning the existence of such fact or matter. (Page 7) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_112 | “Knowledge” means, with respect to <omitted> Premier Financial, the Knowledge of any officer of Premier Financial, Citizens Bank or Premier Bank with the title of Chairman, Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, Chief Credit Officer, Chief Lending Officer, President of Citizens Bank, Compliance officer for Citizens Bank, the President of Premier Bank, or the Compliance Officer for Premier Bank. (Page 7) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_114 | “Knowledge” means <omitted> (b) with respect to the Company, the actual knowledge of the individuals listed on Schedule A-I(b) Knowledge of the Company Disclosure Schedules. (Page 75) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_114 | “Knowledge” means <omitted> (b) with respect to the Company, the actual knowledge of the individuals listed on Schedule A-I(b) (Page 75) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_115 | “Knowledge” means, with respect to (a) the Company as it relates to any fact or other matter, the actual knowledge of the natural Persons set forth in Section 1.01B of the Company Disclosure Letter of such fact or matter as of the date hereof, in each case, after reasonable inquiry, and (Page 13) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_115 | “Knowledge” means <omitted> the actual knowledge of the natural Persons set forth in Section 1.01B of the Company Disclosure Letter (Page 13) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_117 | “knowledge” means the actual knowledge of, (a) in the case of the Company, the individuals listed in Schedule 1.1 of the Company Disclosure Letter and (Page 99) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_117 | “knowledge” means the actual knowledge of <omitted> the individuals listed in Schedule 1.1 of the Company Disclosure Letter (Page 99) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_120 | “Knowledge” of the Company, with respect to any matter in question, means the actual knowledge of the Company’s President; Executive Vice President, Chief Financial Officer and Treasurer; Executive Vice President, Chief Legal Officer and Secretary; and Chief Information Officer. (Page 16) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_120 | “Knowledge” of the Company <omitted> means the actual knowledge of the Company’s President; Executive Vice President, Chief Financial Officer and Treasurer; Executive Vice President, Chief Legal Officer and Secretary; and Chief Information Officer. (Page 16) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_122 | “knowledge of the Company” shall mean the knowledge, after reasonable inquiry, of the individuals listed in Part “Definitions” of the Company Disclosure Schedule. (Page 93) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_123 | “knowledge” (i) with respect to the Company means the actual knowledge of any of the individuals listed in Section 10.5(p) of the Company Disclosure Letter and (ii) with respect to Parent or Merger Sub means the actual knowledge of any of the individuals listed in Section 10.5(p) of the Parent Disclosure Letter, in each case, after reasonable inquiry of such individual’s direct reports; (Page 83) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_123 | “knowledge” <omitted> means the actual knowledge of any of the individuals listed in Section 10.5(p) of the Company Disclosure Letter (Page 83) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_126 | “Knowledge” will be deemed to be, as the case may be, the actual knowledge of (a) the individuals set forth on Section 1.1(a) of the Parent Disclosure Letter with respect to Parent, Merger Sub I or Merger Sub II or (b) the individuals set forth on Section 1.1(a) of the Company Disclosure Letter with respect to the Company, in each case after reasonable inquiry of those employees of such Party and its Subsidiaries who would reasonably be expected to have actual knowledge of the matter in question. (Page 103) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_126 | “Knowledge” will be deemed to be <omitted> the actual knowledge of <omitted> (b) the individuals set forth on Section 1.1(a) of the Company Disclosure Letter (Page 103) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_144 | “knowledge”, with respect to the Company, means the actual knowledge of the Company’s President, Chief Executive Officer, Chief Financial Officer, Chief Operating Officer, Chief Strategy Officer or General Counsel; (Page 84) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_147 | “Knowledge” of a Person means (a) with respect to the Company and the Company Subsidiaries, the actual knowledge, after reasonable inquiry of those individuals with responsibility for the matter in question, of the individuals set forth on Section 1.1(D) of the Company Disclosure Schedule (Page 10) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_147 | “Knowledge” of a Person means <omitted> the actual knowledge <omitted> of the individuals set forth on Section 1.1(D) of the Company Disclosure Schedule (Page 10) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_148 | “to the Company’s knowledge” or “to the knowledge of the Company” means the actual knowledge of any of the persons listed in Section 9.1(b) of the Company Disclosure Letter. (Page 100) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_149 | “Knowledge” shall mean the actual knowledge of each of the following officers and employees of the Company or Parent, as applicable, after reasonable inquiry by each such person: (i) for the Company: William C. Johnson, Martin D. Agard, Joel H. Horn, Richard N. Caron, Jennifer Gudenkauf and Philip Dei Dolori; and (ii) for Parent: Filippo Berti and Bradford D. Willis. (Page 43) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_149 | “Knowledge” shall mean the actual knowledge of each of the following officers and employees of the Company or Parent <omitted>: (i) for the Company: William C. Johnson, Martin D. Agard, Joel H. Horn, Richard N. Caron, Jennifer Gudenkauf and Philip Dei Dolori; and (ii) for Parent: Filippo Berti and Bradford D. Willis. (Page 43) | Reasonable standard | 0 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_150 | “knowledge of the Company” shall mean the knowledge, after reasonable inquiry, of the individuals listed in Part “Definitions” of the Company Disclosure Schedule. (Page 107) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
abridged | contract_150 | “knowledge of the Company” shall mean the knowledge <omitted> of the individuals listed in Part “Definitions” of the Company Disclosure Schedule. (Page 107) | Strict liability | 1 | Liability standard for no-shop breach by Target Non-D&O Representatives | <NONE> | No-Shop | 72 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.3.Acquisition Proposals. <omitted> (b) Notwithstanding Section 6.3(a) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to the Acceptance Time, (i) the Company has received a bona fide (as reasonably determined in good faith by the Company Board) written Acquisition Proposal in circumstances not involving a material breach of this Section 6.3 and (ii) the Company Board or a committee thereof in good faith, after consultation with outside legal counsel and financial advisors, determines that such Acquisition Proposal constitutes or is reasonably likely to lead to or result in a Superior Proposal and, after consultation with outside legal counsel, that failure to take such action would breach the fiduciary duties of the Company Board under applicable Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives and (B) participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal; (Page 24) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.4 Non-Solicitation.
<omitted>
Notwithstanding anything to the contrary in this Agreement, prior to obtaining the East Stockholder Approval, East and the East Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(a) with respect to a third party if (w) after the date of this Agreement, East receives a written Acquisition Proposal with respect to East from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by East or any of the East Subsidiaries or any of their respective Representatives), (x) East provides Central the notice required by Section 5.4(g) with respect to such Acquisition Proposal, (y) the East Board determines in good faith (after consultation with East’s financial advisors and outside legal counsel) that such proposal constitutes or could reasonably be expected to lead to a Superior Proposal with respect to East, and (z) the East Board determines in good faith (after consultation with East’s outside legal counsel) that the failure to participate in such discussions or negotiations or to disclose such information or data to such third party would breach its fiduciary duties; provided that East shall not deliver any information to such third party without first entering into an Acceptable Confidentiality Agreement with such third party. (Page 75) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.3 No Solicitation by the Company. <omitted> (b) From and after the date of this Agreement, the Company and its officers and directors will not, will cause the Company’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of the Company and its Subsidiaries not to, directly or indirectly: <omitted> (ii) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect to, relating to, or in furtherance of a Company Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Competing Proposal; (iii) furnish any non-public information regarding the Company or its Subsidiaries, or access to the properties, assets or employees of the Company or its Subsidiaries, to any Person in connection with or in response to any Company Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Competing Proposal; <omitted>
(e) <omitted> (ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Section 6.3(b)(ii) or Section 6.3(b)(iii) with any Person if (1) the Company receives a bona fide written Company Competing Proposal from such Person that was not solicited at any time following the execution of this Agreement and (2) such Company Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board or any committee thereof in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions that prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) that any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly (and in any event within 24 hours) after) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board or any committee thereof determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Company Competing Proposal is, or would reasonably be expected to lead to, a Company Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would breach the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Pages 70-71) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | SECTION 5.02. Solicitation;
<omitted>
(b) Notwithstanding the limitations contained in Section 5.02(a), if at any time on or after the date hereof and prior to obtaining the Stockholder Approval, the Company or any of its Representatives receives a bona fide Takeover Proposal, which Takeover Proposal did not result from a material breach of Section 5.02(a), (i) the Company and its Representatives may contact and engage in discussions with such Person or group of Persons making the Takeover Proposal or its or their Representatives solely to clarify the terms and conditions thereof or to request that such Takeover Proposal made orally be made in writing and (ii) if the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that any such Takeover Proposal constitutes 38
or would reasonably be expected to result in a Superior Proposal, and the failure to take such actions would breach the directors’ fiduciary duties under applicable Law, then the Company and any of its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives; provided that the Company shall promptly (and in any event within 24 hours) provide to Parent any non-public information concerning the Company that is provided to any Person given such access which was not previously provided to Parent or its Representatives and (y) following the execution of an Acceptable Confidentiality Agreement, engage in or otherwise participate in discussions or negotiations regarding such Takeover Proposal with the Person or group of Persons making such Takeover Proposal and its or their Representatives and financing sources. (Pages 42-43) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.4 Acquisition Proposals. <omitted> (b) Notwithstanding the foregoing in this Section 6.4, prior to the receipt of the Company Stockholder Approval, the Company Board (or a committee thereof), directly or indirectly through any Representative, may, subject to Section 6.4(c): (i) participate in negotiations or discussions with any third party, that has made (and not withdrawn) a bona fide Alternative Proposal in writing that was not solicited in violation of Section 6.4(a) that the Company Board (or a committee thereof) believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or could reasonably be expected t o result in a Superior Proposal; (ii) enter into, and thereafter furnish to such third party non-public information relating to the Company or any Company Subsidiaries pursuant to, an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of such third party non-public information (to the extent such non-public information has not been previously made available by the Company to Parent) and such Acceptable Confidentiality Agreement shall be provided to Parent substantially contemporaneously); (iii) following receipt of and on account of a Superior Proposal, and subject to Section 6.4(d) and Section 6.4(f), make a Company Adverse Recommendation Change or terminate this Agreement pursuant to and in accordance with Section 8.3(a); or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but, in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board (or a committee thereof) determines in good faith, after consultation with outside legal counsel and its financial advisor, that the failure to take such action would breach its fiduciary duties under applicable Law or in violation of any Order of a court of competent jurisdiction. (Page 51)
Section 6.4 Acquisition Proposals. <omitted> (b) <omitted> the Company Board <omitted>, may, <omitted> (i) participate in negotiations or discussions with any third party, that has made (and not withdrawn) a bona fide Alternative Proposal <omitted> that the Company Board (or a committee thereof) believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or could reasonably be expected to result in a Superior Proposal; <omitted> but, <omitted> only if the Company Board (or a committee thereof) determines in good faith, after consultation with outside legal counsel and its financial advisor, that the failure to take such action would breach its fiduciary duties under applicable Law or in violation of any Order of a court of competent jurisdiction. (Page 51) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 6.2 Solicitation of Transactions. <omitted>
(b) No-Shop Period. <omitted> (ii) Notwithstanding anything to the contrary herein, if at any time following the date hereof and prior to the time the Requisite Company Vote is obtained, in response to a bona fide written Acquisition Proposal that was not solicited in breach of Section 6.2(b)(i) (except to the extent solicited in accordance with Section 6.2(a)) that the Company Board determines in good faith (after consultation with outside counsel and its financial advisor) is, or could reasonably be expected to lead to, a Superior Proposal, the Company may, subject to compliance with Section 6.2, (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that all such information has previously been provided to Parent or is provided to Parent prior to or promptly following the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel) that failure to take such action would breach its fiduciary duties under applicable Law. In addition, notwithstanding the foregoing, prior to the time the Requisite Company Vote is obtained, the Company may, solely to the extent the Company Board determines in good faith (after consultation with outside legal counsel) that failure to take such action would breach its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposal that will constitute, or could reasonably likely lead to, a Superior Proposal, that did not, in each case, result from a breach by the Company of Section 6.2(b)(i). (Page 30) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | SECTION 7.8. No Solicitation. (a) <omitted> Notwithstanding anything in this Agreement to the contrary, if in response to an unsolicited bona fide written Acquisition Proposal made by a Third Party after the date hereof in circumstances not involving a breach in any material respect of this Section 7.8, the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would breach the fiduciary duties of the Company Board under applicable Law, then the Company may, at any time prior to the Offer Closing (but in no event after such time), enter into a customary confidentiality agreement (x) containing confidentiality and other terms that are no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreement and (y) that does not prevent the Company from providing any 70
information to Parent in accordance with this Agreement or otherwise comply with its obligation under this Agreement (an “Acceptable Confidentiality Agreement”) with such Third Party making such an Acquisition Proposal and thereafter (1) furnish information and data with respect to the Company and the Company Subsidiaries and afford access to the business, personnel, properties, assets, books or records of the Company and the Company Subsidiaries, in each case, pursuant to such Acceptable Confidentiality Agreement, and (2) enter into, maintain and participate in discussions or negotiations with, the Third Party making such Acquisition Proposal and its Representatives; provided, that the Company will concurrently provide to Parent any information and data concerning the Company or any Company Subsidiary or access provided to such Third Party that was not previously made available to Parent. (Pages 74-75) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.4 Non-Solicitation. <omitted> Notwithstanding anything to the contrary in this Agreement, prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, Lambda and the Lambda Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(a) with respect to a third party if (w) after the date of this Agreement and prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, Lambda receives a written Acquisition Proposal with respect to Lambda from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Lambda or any of the Lambda Subsidiaries or any of their respective Representatives), (x) Lambda provides Pi the notice 66
required by Section 5.4(g) with respect to such Acquisition Proposal, (y) the Lambda Board determines in good faith (after consultation with Lambda’s financial advisors and outside legal counsel) that such proposal constitutes or could reasonably be expected to lead to a Superior Proposal with respect to Lambda, and (z) the Lambda Board determines in good faith (after consultation with Lambda’s outside legal counsel) that the failure to participate in such discussions or negotiations or to disclose such information or data to such third party would breach its fiduciary duties; provided that Lambda shall not deliver any information to such third party without first entering into an Acceptable Confidentiality Agreement with such third party. Notwithstanding the limitations set forth in this Section 5.4(a) and subject to compliance with Lambda’s obligations contained in Section 5.4(g), if Lambda receives, following the date hereof and prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, a bona fide written Acquisition Proposal that did not result from a knowing and intentional breach of this Section 5.4, Lambda and its Representatives may contact the Person or any of such Person’s Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that Lambda may inform itself about such Acquisition Proposal. Nothing contained in this Section 5.4 shall prohibit Lambda or the Lambda Board from taking and disclosing to the Lambda Stockholders a position with respect to an Acquisition Proposal with respect to Lambda pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law. (Pages 71-72) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 7.3 Other Offers, etc. <omitted> provided, however, that prior to receipt of the Requisite SB Shareholder Approval, this Section 7.3 shall not prohibit a SB Entity from furnishing nonpublic information regarding any SB Entity or other access to, or entering into a confidentiality agreement or discussions or negotiations with, any Person or Group in response to a bona fide, unsolicited written Acquisition Proposal submitted by such Person or Group (and not withdrawn) if and only if: (A) no SB Entity or Representative or Affiliate thereof shall have violated any of the restrictions set forth in this Section 7.3 (other than an unintentional violation that did not, directly or indirectly, result in the
submission of such Acquisition Proposal), (B) SB’s board of directors shall have determined in good faith, after consultation with the SB Financial Advisor (or such other financial advisor as SB may use) and outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, (C) SB’s board of directors concludes in good faith, after consultation with its outside counsel, that the failure to take such action would breach its fiduciary duties under applicable Law to SB and its shareholders, (Pages 21-22) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.2 No Solicitation; Recommendations. <omitted> Notwithstanding the foregoing, if at any time following the date of this Agreement and prior to obtaining the Parent Stockholder Approval or the Company Stockholder Approval (as applicable), (1) Parent or the Company receives a written Acquisition Proposal that the Parent Board or the Company Board, respectively, determines in good faith to be bona fide, (2) such Acquisition Proposal was not solicited after the date of this Agreement in violation of Section 5.2(a) and did not otherwise result from a breach of this Section 5.2, (3) the Parent Board or the Company Board (as applicable) determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (4) the Parent Board or the Company Board (as applicable) determines in good faith (after consultation with outside counsel) that the failure to take the actions referred to in clause (x) or (y) below would breach its fiduciary duties to the Parent Stockholders or the Company Stockholders, respectively, under applicable Law, then Parent or the Company (as applicable) may (x) furnish information with respect to such Party and its Subsidiaries to the Person making such Acquisition Proposal pursuant to a customary confidentiality agreement containing confidentiality terms substantially similar to, and no less favorable in the aggregate to such Party than, those set forth in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”); provided, that (I) such Party shall provide the other Party with a non-redacted copy of each confidentiality agreement such Party has executed in accordance with this Section 5.2 and (II) any non-public information provided to any such Person shall have been previously provided to the other Party or shall be provided to the other Party prior to or substantially concurrently with (or in the case of oral communication only, within 24 hours after) the time it is provided to such Person, and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal and such Person’s Representatives and financing sources regarding such Acquisition Proposal and take any other actions with respect to such Acquisition Proposal that would otherwise be restricted by Section 5.2(a) (i) or Section 5.2(a)(ii) (it being understood that no solicitation under this clause (y) shall result in any proposal or offer being deemed to be “solicited”). Nothing in this Section 5.2 shall prohibit the Company or Parent, or the Company Board or the Parent Board, as applicable, directly or indirectly through any Representative, from seeking to clarify the terms and conditions of such inquiry or proposal to determine whether such inquiry or proposal constitutes or would be reasonably expected to lead to a Superior Proposal. (Page 82) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 8.4 No Solicitation by the Company; Company Acquisition Proposals.
<omitted>
(b) Notwithstanding anything to the contrary in Section 8.4(a), if, at any time following the date of this Agreement and prior to receipt of the Parent Shareholder Approval, (i) a Company Party receives an unsolicited written Acquisition Proposal that the Conflicts Committee and the Company Board believes in good faith to be bona fide, (ii) such Acquisition Proposal was not the result of a violation of this Section 8.4, and (iii) the Conflicts Committee and the Company Board determine in good faith (after consultation with their respective outside legal and financial advisors) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and (after consultation with their respective outside legal advisors) that a failure to take action with respect to such Acquisition Proposal would breach its duties under applicable Law, then such Company Party may (and may authorize the Company’s Subsidiaries and its and their Representatives to) (x) furnish, make available or provide access to non-public information with respect to the Company Parties and their Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that any non-public information provided
104
to any Person given such access shall have previously been provided to Parent or shall be provided (to the extent permitted by applicable Law) to Parent prior to or substantially concurrently with the time it is provided to such Person, and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, the Company Parties and their Representatives may contact any Person submitting an Acquisition Proposal (that was not the result of a violation of this Section 8.4) to clarify the terms of an Acquisition Proposal so as to determine whether such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal. (Pages 110-111) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.2 No Solicitation. <omitted> (b) Certain Permitted Conduct. Notwithstanding anything in this Agreement to the contrary but subject to this Section 5.2(b),at any time following the date of this Agreement and prior to the time the Company Shareholder Approval is obtained, if the Company receives a written Acquisition Proposal from any Person or Group that did not result from a breach of this Section 5.2:(i) the Company and its Representatives may contact such Person or Group to ascertain facts or to clarify the terms and conditions thereof;(ii) the Company and the Company’s Representatives may provide non-public information and data concerning the Company and its Subsidiaries to such Person or Group, their Representatives and their prospective equity and debt financing sources; provided that the Company shall make available to Parent and Merger Sub (through an electronic data site or otherwise), concurrently with providing such information to any such Person(s), any non-public information concerning the Company or its Subsidiaries that the Company made available to any such Person or Group, their Representatives and their prospective equity and debt financing sources if such information was not previously made available to Parent and Merger Sub; and (iii) the Company and its Representatives may engage or participate in any discussions or negotiations with such Person or Group regarding such Acquisition Proposal; <omitted> provided that, prior to taking any action described in clauses (ii) or (iii) above, <omitted> Company and the Company’s Board of Directors (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside counsel) that (A) the failure to take such action would breach the Company directors’ fiduciary duties under applicable Law and (B) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal (Page 41) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 7.2. Company Acquisition Proposals. (a) <omitted> Notwithstanding anything to the contrary in the foregoing provisions of this Section 7.2(a), prior to the time, but not after, the Requisite Company Stockholder Approvals are obtained, the Company and its Representatives may, after complying with Section 7.2(e), (A) provide information in response to a request therefor by a Person who has made an unsolicited bona fide written Company Acquisition Proposal after the date of this Agreement that did not result from a breach in any material respect of this Section 7.2 if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to such Person than those contained in the Confidentiality Agreement; provided, however, that such information has previously been made available to Parent or is made available to Parent prior to or promptly after the time such information is made available to such Person; and (B) engage or otherwise participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Company Acquisition Proposal, if and only to the extent that, (I) prior to taking any action described in clause (A) or (B) directly above, the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith after consultation with its outside legal counsel that failure to take such action would breach the directors’ fiduciary duties under applicable Law and (II) in each such case referred to in clause (A) or (B) directly above, the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its outside legal counsel and financial advisor that such Company Acquisition Proposal either constitutes a Company Superior Proposal or could reasonably be expected to result in a Company Superior Proposal. <omitted>
“Company Superior Proposal” means an unsolicited bona fide written Company Acquisition Proposal that would result in any Person (other than the Company, Parent, Merger Sub, Merger Sub II or any controlled Affiliate thereof) becoming the beneficial owner, directly or indirectly, of fifty percent (50%) or more of the assets (on a consolidated basis) or fifty percent (50%) or more of the total voting power of the equity securities of the Company (or of the surviving entity in a merger involving the Company or the resulting direct or indirect parent of the Company or such surviving entity) that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in its good faith judgment, after consultation with its outside financial advisor(s) and outside legal counsel (a) would result in a transaction that, if consummated, would be more favorable to the stockholders of the Company (other than Parent and its Affiliates) from a financial point of view than the Mergers (after taking into account any amendments or other revisions to the terms and conditions of this Agreement agreed to by Parent in writing pursuant to Section 7.2(b) and the time likely to be required to consummate such Company Acquisition Proposal) and (b) is reasonably capable of being consummated on the terms so proposed. (Pages 42-43) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 7.2 Acquisition Proposals; Change of Recommendation <omitted> (b) Exceptions to No Solicitation. Notwithstanding anything to the contrary set forth in this Section 7.2, but subject to the provisions of Section 7.2(c), after the execution and delivery of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to Article IX, the Company, its Subsidiaries and its and their respective Representatives may, in response to an unsolicited bona fide written Acquisition Proposal that is made after the execution and delivery of this Agreement (but only if the Company did not violate (other than in immaterial respects) any provision of this Section 7.2 with respect to the Person or Group making such Acquisition Proposal): (i) provide non-public and other information and data concerning the Company and its Subsidiaries and access to the Company and its Subsidiaries’ properties and books and records in response to a request from the Person or Group (or their Representatives) who made such an Acquisition Proposal; provided that, to the extent applicable, correct and complete copies of such information or data or access has previously been made available to Parent, or is made available to Parent prior to or substantially concurrently with the time such information and/or access is made available to such Person or Group, and prior to providing any such information or data or access, the Company and the Person or Group making such Acquisition Proposal shall have entered into a legally binding confidentiality agreement with terms not materially less restrictive in the aggregate to such Person or Group than the terms in the Confidentiality Agreement are on Counterparty (as defined in the Confidentiality Agreement) (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making or amending of an Acquisition Proposal if such Acquisition Proposal is made directly to the Company and not publicly disclosed, but shall not include any restrictions that would reasonably be expected to restrain the Company from satisfying its obligations contemplated by Section 7.2(c)) (any confidentiality agreement satisfying such criteria, a “Permitted Confidentiality Agreement”); and (ii) engage or otherwise participate in any discussions or negotiations with any such Person or Group and their Representatives regarding such Acquisition Proposal (it being understood that, notwithstanding the remainder of this clause (ii), the Company and its Representatives may at any time contact in writing any such Person or Group to the extent necessary to clarify the terms and conditions of such Acquisition Proposal, so long as a copy of such written communication is promptly provided to Parent), if, prior to taking any action described in clause (i) or this clause (ii) of this Section 7.2(b), the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available, including the terms and conditions of such Acquisition Proposal and those of this Agreement, and after consultation with an independent financial advisor of nationally recognized reputation, that (A) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (B) the failure to take such action would breach the directors’ fiduciary duties under applicable Law. (Pages 71-72) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 6.3 No Solicitation by the Company. <omitted>
(e) Notwithstanding anything in this Agreement to the contrary: <omitted>
(ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Sections 6.3(b)(ii) or 6.3(b)(iii) (and, only with respect to a Company Competing Proposal that satisfies the requirements in the following clauses (1) and (2), may solicit, propose, knowingly encourage, or knowingly facilitate any inquiry or the making of any proposal or offer with respect to such Company Competing Proposal or any modification thereto) with any Person if (1) the Company receives a bona fide written Company Competing Proposal from such Person that was not solicited at any time following the execution of this Agreement and (2) such Company Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions which prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) that any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly (and in any event within the shorter of one (1) Business Day and 48 hours) after) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Company Competing Proposal is, or would reasonably be expected to lead to, a Company Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would breach the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Page 53) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.03 No Solicitation by the Company.
<omitted>
(c) Notwithstanding the foregoing, if at any time prior to the receipt of the Company Stockholder Approval (the “Company Approval Time”), the Board of Directors of the Company receives a bona fide written Company Acquisition Proposal made after the date of this Agreement that has not resulted from a violation of this Section 6.03 and the Board of Directors of the Company determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Company Acquisition Proposal is or is reasonably likely to lead to a Company Superior Proposal and, after consultation with its outside legal counsel, that failure to take the actions referred to in clause (A) and (B) below would breach the directors’ fiduciary duties under Applicable Law, then the Company may (A) subject to compliance with this Section 6.03, engage in negotiations or discussions with such Third Party and (B) furnish to such Third Party and its Representatives non-public information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided, that all such non-public information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, substantially concurrently with the time it is provided or made available to such Third Party. (Page 81) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 6.3 No Solicitation by the Company. <omitted> (ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Sections 6.3(b)(ii) or 6.3(b)(iii) with respect to a Competing Proposal only if such Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished and no discussions or negotiations regarding a Competing Proposal may occur until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions which prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly after (and in any event no later than twenty-four (24) hours after receipt thereof)) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board or any committee thereof determines in good faith, after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that such Competing Proposal is, or would reasonably be expected to lead to, a Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would breach the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Page 60) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.4 Non-Solicitation; Change in Recommendation. <omitted> (b) The foregoing notwithstanding, if at any time before the time the Company Required Vote is obtained, the Company Board receives a bona fide written Acquisition Proposal made after the date of this Agreement that has not resulted from a Willful Breach of this Section 5.4, the Company Board, directly or indirectly through its Representatives, may, if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal is or would reasonably be expected to lead to a Superior Proposal and that the failure to take such action would breach its fiduciary duties under applicable Law, subject to compliance with Section 5.4(c), (A) engage in negotiations or discussions with such Third Party and its Representatives and financing sources and (B) furnish to such Third Party and its Representatives and financing sources information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement that (1) does not contain any provision that would prevent the Company from complying with its obligation to provide disclosure to Parent pursuant to this Section 5.4 and (2) contains provisions that, in each case, are not materially less favorable to the Company than those contained in the Confidentiality Agreement (provided that no such confidentiality agreement shall be required to contain any standstill or similar provisions) (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), a copy of which Acceptable Confidentiality Agreement shall be provided to Parent promptly after its execution; provided, that all such information (to the extent that such information is non-public and has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, substantially concurrently with the time it is provided or made available to such Third Party. (Page 25) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | (c) Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, if, at any time from and after the No-Shop Period Start Date and prior to the Offer Closing, the Company receives a bona fide written Takeover Proposal that is not withdrawn from any Person that did not result from or involve a breach of Section 6.03(b), and if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, (i) that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (ii) failure to take the actions set forth in clauses (A) and (B) below would breach the Company Board’s fiduciary duties under applicable Law, then the Company and its Representatives may, in response to such Takeover Proposal, (A) furnish, pursuant and subject to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries to the Person that has made such written Takeover Proposal and its Representatives; provided, that the Company shall, (x) provide Parent with a copy of such executed Applicable Confidentiality Agreement promptly (and in no event later than 24 hours) after execution and (y) prior to or substantially concurrently with the delivery to such Person, provide to Parent any information or data concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its directors, officers, employees, investment bankers, attorneys, accountants and other advisors or Representatives, whether in writing or orally, unless such information has been previously provided to Parent, in which case the Company shall promptly (and in no event later than 24 hours) provide written notification to Parent of the information and data so provided (unless such information was not previously provided to Parent or Merger Sub at the request of Parent or Merger Sub or to comply with applicable Law); and (B) engage in, facilitate or otherwise participate in discussions or negotiations with the Person making such Takeover Proposal and its Representatives regarding such Takeover Proposal. The Company Board shall promptly (and in any event within 24 hours) notify Parent in writing if the Company Board makes the determinations set forth in this Section 6.03(c). Nothing in this Section 6.03(c) shall limit the Company’s rights prior to the Cut-Off Time with respect to an Excluded Party. (Page 55) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 5.3 Solicitation of Acquisition Proposals
<omitted>
(b) Permitted Activities. Notwithstanding anything to the contrary in this Section 5.3, until the Offer Acceptance Time, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Company Financial Advisor), following the execution of an Acceptable Confidentiality Agreement, (i) participate or engage in discussions or negotiations with; (ii) furnish any non-public information relating to the Company or any of its Subsidiaries to; (iii) afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries to; or (iv) otherwise facilitate the making of a Superior Proposal by, in each case, any Person or its Representatives that has made, renewed or delivered to the Company a bona fide unsolicited written Acquisition Proposal that did not result from a breach of Section 5.3(a); provided, that, the Company and its Representatives may contact any third Person in writing (with a request that any response from such third 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 constitutes a Superior Proposal (without the Company Board being required to make the determination in the following proviso), it being agreed that if the 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, prior to taking any actions contemplated by this Section 5.3(b), the Company Board (or a committee thereof) 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 is reasonably likely to lead to a Superior Proposal and (2) the failure to take the actions contemplated by this Section 5.3(b) would breach its fiduciary duties pursuant to applicable Law. (Page 68) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.3 No Solicitation by the Company. <omitted>
(e) Notwithstanding anything in this Agreement to the contrary: <omitted>
(ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Section 6.3(b)(ii) or Section 6.3(b)(iii) with any Person if (1) the Company receives a bona fide written Company Competing Proposal from such Person that was not solicited at any time following the execution of this Agreement and (2) such Company Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions that prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) that any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly (and in any event within 24 hours) after) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Company Competing Proposal is, or would reasonably be expected to lead to, a Company Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would breach the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Pages 32-33) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 6.3 No Solicitation by the Company. <omitted> (b) Notwithstanding anything to the contrary contained in Section 6.3(a), if, at any time following the date hereof and prior to the Effective Time, (i) the Company receives a bona fide written Company Acquisition Proposal from a Third Party, which Company Acquisition Proposal was made or renewed on or after the date of this Agreement and does not result from a breach (other than a de minimis breach) of the obligations set forth in Section 6.3(a) and (ii) the Company Board determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such Company Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Company Proposal and the failure to take the following actions would breach the directors’ fiduciary duties under applicable Law, then the Company may (A) enter into an Acceptable Confidentiality Agreement with and furnish information with respect to the Company and the Company Subsidiaries (including nonpublic information) to the Third Party making such Company Acquisition Proposal or its Representatives, and (B) participate in discussions or negotiations with such Third Party making such Company Acquisition Proposal and its Representatives regarding such Company Acquisition Proposal (subject to the notification and other requirements of Section 6.3(c)); (Page 54) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 4.3 No Solicitation by the Company.
<omitted>
(b) Notwithstanding anything to the contrary contained in Section 4.3(a), but subject to Section 4.3(c), prior to the adoption of this Agreement by the Required Company Stockholder Vote, the Company may furnish non-public information regarding the Inphi Entities to, and may enter into discussions or negotiations with, any Person in response to an unsolicited, bona fide, written Company Acquisition Proposal that is made to the Company after the date of this Agreement by such Person (and not withdrawn) if: (i) none of the Inphi Entities and none of their respective Representatives shall have breached any of the restrictions or other provisions set forth in this Section 4.3 in a manner that led to such Company Acquisition Proposal; (ii) the Company’s board of directors determines in good faith, after having taken into account the advice of an independent financial advisor of nationally recognized reputation and the Company’s outside legal counsel, that such Company Acquisition Proposal constitutes or would reasonably be expected to lead to a Company Superior Offer; (iii) the Company’s board of directors determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that the failure to take such action would breach its fiduciary obligations to the Company’s stockholders under applicable Delaware law; (Page 58) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.3 No Solicitation of Transactions. <omitted> (b) Notwithstanding Section 6.3(a), at any time following the date of this Agreement and prior to the time when the Company Stockholder Approval is obtained (and in no event after the Company Stockholder Approval is obtained), in response to a bona fide written Acquisition Proposal received after the date hereof that the Company Board determines in good faith After Consultation constitutes or would reasonably be expected to result in a Superior Proposal, and with respect to which the Company Board determines in good faith After Consultation, that the failure to take such action would breach the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law, then the Company and the Representatives of the Company may, subject to compliance with this Section 6.3, (i) engage or participate in discussions or negotiations with, and only with, the Person (or such Person’s representatives) that has made such Acquisition Proposal, and (ii) furnish to the Person (or such Person’s representatives) that has made the Acquisition Proposal information relating to the Company and the Company Subsidiaries or afford access to the business, properties, assets, books, records or the personnel of the Company and the Company Subsidiaries, in each case pursuant to an Acceptable Confidentiality Agreement; provided that the Company did not receive such Acquisition Proposal in connection with or as a result of breaching or violating the terms of this Section 6.3 (other than an isolated, inadvertent and immaterial breach or violation). (Page 38) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 5.3 No Solicitation. <omitted>
(b) 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 (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Advisor), participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company Group to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company Group pursuant to an Acceptable Confidentiality Agreement to any Person or its Representatives that has made or delivered to the Company Parties an Acquisition Proposal after December 11, 2020, 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 did not result from any material breach of Section 5.3(a); provided, however, that the Company Board (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 likely to lead to a Superior Proposal, and the Company Board (or a committee thereof) 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 breach its 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 the Parent Entities any non-public information concerning the Company Group that is provided to any such Person or its Representatives that was not previously made available to the Parent Entities. (Page 68) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 7.3 No Solicitation; Company Acquisition Proposals. <omitted> Notwithstanding the foregoing (but subject to this Section 7.3(a)), if, at any time following the date of this Agreement and prior to obtaining the Company Stockholder Approval, (1) Company receives an unsolicited bona fide Company Acquisition Proposal, (2) such Company Acquisition Proposal was not the result of a violation of this Section 7.3(a), (3) the Company Board determines in good faith (after consultation with Company’s outside counsel and financial advisor) that such Company Acquisition Proposal constitutes or would reasonably be likely lead to a Company Superior Proposal, and (4) the Company Board determines in good faith (after consultation with Company’s outside counsel) that the failure to do so would breach its duties under applicable Law, then, subject to compliance with the other terms of this Section 7.3, Company may (and may authorize the Company Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and the Company Subsidiaries to the Person making such Company Acquisition Proposal (and such Person’s Representatives) pursuant to a Company Acceptable Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Parent or shall be provided (to the extent permitted by applicable Law) to Parent prior to or concurrently with the time it is provided to such Person and (y) participate in negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, Company and its Representatives may contact in writing any Person submitting a Company Acquisition Proposal after the date of this Agreement (that was not the result of a violation of this Section 7.3(a)) solely to clarify the terms of a Company Acquisition Proposal for the sole purpose of the Company Board informing itself about such Company Acquisition Proposal, provided that Company shall have previously complied with the provisions of Section 7.3(f) with respect to providing Parent with the information specified therein and shall have previously provided Parent with a copy of any such written request for clarification at least twenty-four (24) hours prior to the time that Company contacts the Person from whom Company received the unsolicited Company Acquisition Proposal. Company agrees that in the event any Representative of Company or any Company Subsidiary takes any action which, if taken by Company, would constitute a material violation of this Section 7.3(a), then Company shall be deemed to be in violation of this Section 7.3(a) for all purposes of this Agreement. Neither the Company nor any Company Subsidiaries shall enter into any agreement with any Person subsequent to the date of this Agreement that prohibits such Person from providing information to Parent in accordance with this Section 7.3. (Page 47) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.3 Acquisition Proposals. <omitted> (b) Exceptions. Notwithstanding anything to the contrary in this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, the Company and its Representatives may (i) provide information in response to a request therefor by a Person who makes an unsolicited bona fide Acquisition Proposal following the Agreement Date if (x) such Acquisition Proposal did not result from a violation of Section 5.3(a), (y) prior to providing such information, the Company receives from such Person an executed confidentiality agreement on terms that, taken as a whole, are not materially less restrictive to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement (1) need not contain a standstill provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal and (2) may not contain terms that prevent the Company from complying with its obligations under this Section 5.3 (any confidentiality agreement satisfying the criteria of this clause (y) being an “Acceptable Confidentiality Agreement”)) and (z) the Company promptly (and in any event within twenty-four (24) hours thereafter) makes available to Parent (including via the Electronic Data Room) any non-public information concerning the Company or the Company Subsidiaries that the Company provides to any such Person that was not previously made available to Parent; (ii) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited Acquisition Proposal; or (iii) authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only if, (A) prior to taking any action described in clause (i), (ii) or (iii) above, the Company Board determines in good faith (after consultation with the Company’s outside legal and financial advisors) based on the information then available that the failure to take such action would breach the directors’ fiduciary duties under applicable Law, (B) prior to taking any action described in clause (i) or (ii) above, the Company Board has determined in good faith (after consultation with the Company’s outside legal and financial advisors) based on information then available that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal and (C) in the case referred to in clause (iii) above, the Company Board determines in good faith that such Acquisition Proposal is a Superior Proposal and the Company has complied with Section 5.3(e) with respect to such Acquisition Proposal prior to taking such action. (Page 34) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.3 No Solicitation by the Company.
<omitted>
(b) From and after the date of this Agreement, the Company and its officers and directors will not, will cause the Company’s Subsidiaries and its and their respective controlled Affiliates and other Representatives not to, directly or indirectly:
<omitted>
provided, that notwithstanding anything to the contrary in this Agreement, prior to obtaining the Company Stockholder Approval, the Company or any of its Representatives may, (A) provide information in response to a request therefor by a Person who has made an unsolicited bona fide written Company Competing Proposal after the date hereof that did not result from a breach (other than a de minimis breach) of this Section 6.3 if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), it being understood that such Acceptable Confidentiality Agreement need not prohibit the making, or amendment, of a Company Competing Proposal and shall not prohibit compliance by the Company with this Section 6.3, and the Company shall promptly disclose (and, if applicable, provide copies of) any such information provided to such Person to Parent to the extent not previously provided to Parent; or (B) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Company Competing Proposal after the date hereof that did not result from a breach (other than a de minimis breach) of this Section 6.3, if and only to the extent that, (x) prior to taking any action described 57
in clause (A) or (B) above, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action in light of the Company Competing Proposal would breach the Company Board’s fiduciary duties under applicable law and (y) in each such case referred to in clause (A) or (B) above, the Company Board has determined in good faith based on the information then available and after consultation with its financial advisor and outside legal counsel that such Company Competing Proposal either constitutes a Company Superior Proposal or is reasonably likely to result in a Company Superior Proposal. (Pages 61-62) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | (b) Exception to No Solicitation Provision. Notwithstanding anything to the contrary in Section 6.2(a), prior to the time, but not after, the Requisite Company Vote is obtained, the Company may, in response to an unsolicited, bona fide written Acquisition Proposal that did not result from a breach of this Section 6.2, (i) provide access to non-public information regarding the Company or any of its Subsidiaries to the Person and its potential sources of financing who made such Acquisition Proposal; provided, that such information has previously been made available to Parent and Merger Sub or is provided to Parent promptly (and in any event within twenty-four (24) hours) following the time such information is made available to such Person and that, prior to furnishing any such non-public information, the Company receives from the Person making such Acquisition Proposal an executed confidentiality agreement with terms at least as restrictive in all material respects on such Person as the Confidentiality Agreement’s terms are on Pretium Partners, LLC (it being understood that such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal) and (ii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal if, and only if, prior to taking any action described in clause (i) or (ii) above, (1) the Company’s board of directors determines in good faith after consultation with outside legal counsel that (A) based on the information then available and after consultation with an independent financial advisor of nationally recognized reputation that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (B) the failure to take such action would breach the directors’ duties under applicable Law and (2) with respect to clause (ii) above, the Company provides written notice to Parent at least twenty-four (24) hours prior to engaging or participating in any discussions or negotiations with any such Person regarding such Acquisition Proposal. (Page 53) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | (b) Notwithstanding the limitations set forth in Section 6.2(a) or anything else in this Agreement to the contrary, if the Company receives, after the date hereof and prior to obtaining the Requisite Company Vote, an unsolicited bona fide written Acquisition Proposal in circumstances not arising from a breach of Section 6.2 which the Company Board of Directors determines in good faith after consultation with the Company’s outside legal and financial advisors (i) constitutes a Superior Proposal or (ii) could reasonably be expected to result in a Superior Proposal, and, in each case, after consultation with outside legal counsel, that the failure to take such action would breach the fiduciary duties of the Company Board of Directors under applicable Law, then in either event the Company may enter into an Acceptable Confidentiality Agreement and thereafter take the following actions: (x) furnish nonpublic information to the Person making such Acquisition Proposal and its Representatives (including potential financing sources), and (y) engage in discussions or negotiations with such Person and its Representatives (including potential financing sources) with respect to the Acquisition Proposal. The Company shall provide Parent with an accurate and complete copy of any Acceptable Confidentiality Agreement as entered into as contemplated by this Section 6.2(b) promptly (and in any event within twenty-four (24) hours) of the execution thereof and the Company shall not terminate, waive, amend, release or modify any material provisions of any Acceptable Confidentiality Agreement. (Page 21) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.11 No Solicitation by First Choice; Superior Proposals. <omitted> (b ) Notwithstanding Section 5.11(a) or any other provision of this Agreement, at any time prior to obtaining the Requisite First Choice Shareholder Approval, First Choice may take any of the actions described in Section 5.11(a) if, but only if, (i) First Choice has received a bona fide unsolicited written Acquisition Proposal that did not result from a breach of this Section 5.11; (ii) the First Choice Board reasonably determines in good faith, after consultation with its outside financial advisor and outside legal counsel, that (a) such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (b) the failure to take such actions would breach or reasonably be expected to result in a breach of its fiduciary duties under applicable Law; and (iii) prior to furnishing or affording access to any information or data with respect to First Choice or any First Choice Subsidiary or otherwise relating to an Acquisition Proposal, First Choice receives from such Person a confidentiality agreement with
67
terms no less favorable to First Choice than those contained in the confidentiality agreement with Enterprise (it being understood that nothing therein shall have the effect of a standstill provision). First Choice shall promptly provide to Enterprise any non-public information regarding First Choice or First Choice Subsidiaries provided to any other Person which was not previously provided to Enterprise, such additional information to be provided no later than the date of provision of such information to such other party. (Pages 72-73) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 5.3. No Solicitation.
<omitted>
(b) Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the date of this Agreement until the Company obtains the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Advisor), following the execution of an Acceptable Confidentiality Agreement, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries to any Person or its Representatives (including, for these purposes, sources of financing) that has made or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement did not result or arise from a breach of Section 5.3(a), but only if the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that (i) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal; and (ii) the failure to take the actions contemplated by this Section 5.3(b) would breach its fiduciary duties pursuant to applicable Law. In connection with the foregoing, the Company will prior to or contemporaneously make available to Parent any non-public information concerning the Company and its Subsidiaries that is provided to any such Person or its Representatives that was not previously made available to Parent. (Page 66) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | 7.5 Acquisition Proposals. (a) No Solicitation or Negotiation. <omitted> Notwithstanding anything to the contrary in the foregoing provisions of this Section 7.5(a) but subject to the Paired Entities’ compliance with this Section 7.5, at an y time prior to the time, but not after, the Requisite Vote is obtained, the Paired Entities, the Paired Entities Subsidiaries and their Representatives may (A) provide information (to any such person, its Representatives, affiliates and its prospective financing sources) in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal (not resulting from a breach of this Section 7.5) after the date of this Agreement if the Paired Entities receive from the person so requesting such information a confidentiality agreement on terms not less restrictive to such person than those contained in the Confidentiality Agreement; it being understood that such confidentiality agreement need not include explicit or implicit standstill provisions that would restrict the making, amendment or modification of a confidential Acquisition Proposal (an “Acceptable Confidentiality Agreement”); provided, however, that any such non- public information has previously been made available to Parent or will be made available to Parent prior to, or substantially concurrently with (and in any event within 48 hours of), the time such information is made available to such person, its Representatives, affiliates and its prospective financing sources or (B) engage or otherwise participate in any discussions or negotiations with any person or group of persons who has made such an Acquisition Proposal; if and only to the extent that, (I) prior to taking any action described in clause (A) or (B) directly above, the Company Board and the Hospitality Board determine in good faith, after consultation with their financial advisor and outside legal counsel, that failure to take such action, in light of the Acquisition Proposal and the terms of this Agreement, would breach the directors’ fiduciary duties under applicable Law and (II) in each such case referred to in clause (A) or (B) directly above, the Company Board and the Hospitality Board have determined in good faith based on the information then available and after consultation with their financial advisor and outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal. Each of the Paired Entities agrees that any breach of this Section 7.5 by any of the Paired Entities Subsidiaries or any Representatives of the Paired Entities or the Paired Entities Subsidiaries shall be deemed to be a breach of this Agreement by the Paired Entities. (Page 58) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 5.3 Acquisition Proposals.
<omitted>
(b) Exceptions. Notwithstanding anything to the contrary in this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, the Company and its Representatives may (i) provide information in response to a request therefor by a Person who makes an unsolicited Acquisition Proposal if the Company did not violate Section 5.3(a) in any material respect in respect of such Person and following the Agreement Date if (x) such Acquisition Proposal did not result from a violation of Section 5.3(a) in any material respect; provided, that the Company shall substantially concurrently provide to Parent any nonpublic information concerning the Company that is provided to any such Person given such access which was not previously provided to Parent or its Representatives (y) prior to providing such information, the Company receives from such Person an executed confidentiality agreement on terms that, taken as a whole, are no less favorable in the aggregate to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal and that does not prohibit the Company from providing any information to Parent or otherwise prohibit the Company from complying with its obligations under this Section 5.3 (any confidentiality agreement satisfying the criteria of this clause (y) being an “Acceptable Confidentiality Agreement”)) and (z) the Company promptly (and in any event within twenty-four (24) hours thereafter) makes available to Parent any non-public information concerning the Company or the Company Subsidiaries that the Company provides to any such Person that was not previously made available to Parent; (ii) engage or participate in any discussions or negotiations with any Person who has made such an Acquisition Proposal; or (iii) after having complied with Section 5.3(e) authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only if, (A) prior to taking any action described in clause (i), (ii) or (iii) above, the Company Board determines in good faith, after consultation with financial advisors and outside legal counsel, that the failure to take such action would breach the directors’ fiduciary duties under applicable Law, (B) prior to taking any action described in clause (i) or (ii) above, the Company Board has determined in good faith based on information then available that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal and (C) in the case referred to in clause (iii) above, the Company Board determines in good faith that such Acquisition Proposal is a Superior Proposal. (Page 43) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.2 No-Shop Period. <omitted> (c) Notwithstanding anything in Section 6.2(a) to the contrary, at any time prior to the adoption of this Agreement by the Company’s stockholders, if the Company receives an Alternative Acquisition Proposal from a third party that was not received in response to, or as a result of, actions that constitute a breach of Section 6.2(a), (i) the Company and its Representatives may contact the third party making such Alternative Acquisition Proposal solely to clarify the terms and conditions thereof, and (ii) if the Company Board determines in good faith, after consultation with outside legal and financial advisors, that such Alternative Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and the Company Board (or a committee thereof) 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 6.2 would breach its fiduciary duties under applicable Law, then the Company may: (A) engage in discussions or negotiations with the third party (including its Representatives and potential equity and debt financing sources) with respect to such Alternative Acquisition Proposal, and (B) furnish nonpublic information 37
to the third party making such Alternative Acquisition Proposal (and its Representatives and potential equity and debt financing sources) if, prior to so furnishing such information, the third party has executed an Acceptable Confidentiality Agreement with the Company, provided that the Company provides to Parent and Merger Sub (and their respective Representatives) any information or data that is provided to such third party that was not previously made available to Parent or Merger Sub prior to or substantially concurrently with the time it is provided to such third party (and in any event within 24 hours thereof). The Company shall notify Parent that it has entered into an Acceptable Confidentiality Agreement within 24 hours after the execution thereof. (Pages 41-42) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
rare_answers | <RARE_ANSWERS> | Section 6.9 No Solicitation.
<omitted>
provided, however, that, notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may engage in any such discussions or negotiations and provide any such information in response to a bona fide written Acquisition Proposal that has not been withdrawn if (A) such bona fide written Acquisition Proposal did not result from a breach of this Section 6.9, (B) prior to providing any material non-public information regarding the Company to any Third Person in response to an Acquisition Proposal, the Company receives from such Third Person (or there is then in effect with such party) an executed confidentiality agreement that contains nondisclosure provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement, (C) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (D) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would breach the Company Board’s fiduciary obligations to the Company Stockholders under applicable Law (Page 35) | "Breach" of fiduciary duties | 0 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_82 | Section 5.3 Acquisition Proposals. <omitted> (b) Exceptions. Notwithstanding anything to the contrary in this Agreement, at any time prior to the time the Company Stockholder Approval is obtained, the Company and its Representatives may (i) provide information in response to a request therefor by a Person who makes an unsolicited bona fide Acquisition Proposal following the Agreement Date if (x) such Acquisition Proposal did not result from a violation of Section 5.3(a), (y) prior to providing such information, the Company receives from such Person an executed confidentiality agreement on terms that, taken as a whole, are not materially less restrictive to the other party than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement (1) need not contain a standstill provision or otherwise prohibit the making, or amendment, of an Acquisition Proposal and (2) may not contain terms that prevent the Company from complying with its obligations under this Section 5.3 (any confidentiality agreement satisfying the criteria of this clause (y) being an “Acceptable Confidentiality Agreement”)) and (z) the Company promptly (and in any event within twenty-four (24) hours thereafter) makes available to Parent (including via the Electronic Data Room) any non-public information concerning the Company or the Company Subsidiaries that the Company provides to any such Person that was not previously made available to Parent; (ii) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited Acquisition Proposal; or (iii) authorize, adopt, approve, recommend or otherwise declare advisable or propose to authorize, adopt, approve, recommend or declare advisable (publicly or otherwise) such an Acquisition Proposal, if and only if, (A) prior to taking any action described in clause (i), (ii) or (iii) above, the Company Board determines in good faith (after consultation with the Company’s outside legal and financial advisors) based on the information then available that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, (B) prior to taking any action described in clause (i) or (ii) above, the Company Board has determined in good faith (after consultation with the Company’s outside legal and financial advisors) based on information then available that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal and (C) in the case referred to in clause (iii) above, the Company Board determines in good faith that such Acquisition Proposal is a Superior Proposal and the Company has complied with Section 5.3(e) with respect to such Acquisition Proposal prior to taking such action. (Page 34) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_121 | Section 7.3 No Solicitation; Company Acquisition Proposals. <omitted> Notwithstanding the foregoing (but subject to this Section 7.3(a)), if, at any time following the date of this Agreement and prior to obtaining the Company Stockholder Approval, (1) Company receives an unsolicited bona fide Company Acquisition Proposal, (2) such Company Acquisition Proposal was not the result of a violation of this Section 7.3(a), (3) the Company Board determines in good faith (after consultation with Company’s outside counsel and financial advisor) that such Company Acquisition Proposal constitutes or would reasonably be likely lead to a Company Superior Proposal, and (4) the Company Board determines in good faith (after consultation with Company’s outside counsel) that the failure to do so would be inconsistent with its duties under applicable Law, then, subject to compliance with the other terms of this Section 7.3, Company may (and may authorize the Company Subsidiaries and its and their Representatives to) (x) furnish non-public information with respect to Company and the Company Subsidiaries to the Person making such Company Acquisition Proposal (and such Person’s Representatives) pursuant to a Company Acceptable Confidentiality Agreement; provided, that any non-public information provided to any Person given such access shall have previously been provided to Parent or shall be provided (to the extent permitted by applicable Law) to Parent prior to or concurrently with the time it is provided to such Person and (y) participate in negotiations with the Person making such Company Acquisition Proposal (and such Person’s Representatives) regarding such Company Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, Company and its Representatives may contact in writing any Person submitting a Company Acquisition Proposal after the date of this Agreement (that was not the result of a violation of this Section 7.3(a)) solely to clarify the terms of a Company Acquisition Proposal for the sole purpose of the Company Board informing itself about such Company Acquisition Proposal, provided that Company shall have previously complied with the provisions of Section 7.3(f) with respect to providing Parent with the information specified therein and shall have previously provided Parent with a copy of any such written request for clarification at least twenty-four (24) hours prior to the time that Company contacts the Person from whom Company received the unsolicited Company Acquisition Proposal. Company agrees that in the event any Representative of Company or any Company Subsidiary takes any action which, if taken by Company, would constitute a material violation of this Section 7.3(a), then Company shall be deemed to be in violation of this Section 7.3(a) for all purposes of this Agreement. Neither the Company nor any Company Subsidiaries shall enter into any agreement with any Person subsequent to the date of this Agreement that prohibits such Person from providing information to Parent in accordance with this Section 7.3. (Page 47) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_16 | Section 6.4 Acquisition Proposals. <omitted> (b) Notwithstanding the foregoing in this Section 6.4, prior to the receipt of the Company Stockholder Approval, the Company Board (or a committee thereof), directly or indirectly through any Representative, may, subject to Section 6.4(c): (i) participate in negotiations or discussions with any third party, that has made (and not withdrawn) a bona fide Alternative Proposal in writing that was not solicited in violation of Section 6.4(a) that the Company Board (or a committee thereof) believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or could reasonably be expected t o result in a Superior Proposal; (ii) enter into, and thereafter furnish to such third party non-public information relating to the Company or any Company Subsidiaries pursuant to, an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of such third party non-public information (to the extent such non-public information has not been previously made available by the Company to Parent) and such Acceptable Confidentiality Agreement shall be provided to Parent substantially contemporaneously); (iii) following receipt of and on account of a Superior Proposal, and subject to Section 6.4(d) and Section 6.4(f), make a Company Adverse Recommendation Change or terminate this Agreement pursuant to and in accordance with Section 8.3(a); or (iv) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but, in each case referred to in the foregoing clauses (i) through (iv), only if the Company Board (or a committee thereof) determines in good faith, after consultation with outside legal counsel and its financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law or in violation of any Order of a court of competent jurisdiction. (Page 51)
Section 6.4 Acquisition Proposals. <omitted> (b) <omitted> the Company Board <omitted>, may, <omitted> (i) participate in negotiations or discussions with any third party, that has made (and not withdrawn) a bona fide Alternative Proposal <omitted> that the Company Board (or a committee thereof) believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or could reasonably be expected to result in a Superior Proposal; <omitted> but, <omitted> only if the Company Board (or a committee thereof) determines in good faith, after consultation with outside legal counsel and its financial advisor, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law or in violation of any Order of a court of competent jurisdiction. (Page 51) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_51 | Section 6.3 No Solicitation by the Company. <omitted>
(e) Notwithstanding anything in this Agreement to the contrary: <omitted>
(ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Section 6.3(b)(ii) or Section 6.3(b)(iii) with any Person if (1) the Company receives a bona fide written Company Competing Proposal from such Person that was not solicited at any time following the execution of this Agreement and (2) such Company Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions that prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) that any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly (and in any event within 24 hours) after) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Company Competing Proposal is, or would reasonably be expected to lead to, a Company Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Pages 32-33) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_132 | 7.3 Acquisition Proposals; Change of Recommendation. <omitted> (b) Exceptions. Notwithstanding anything to the contrary set forth in this Agreement, but, for the avoidance of doubt, subject to the provisions of Section 7.3(c), prior to the time, but not after, the Requisite Company Vote is obtained, in response to an unsolicited, bona fide written Acquisition Proposal that is made after the date of this Agreement (and in any event only if the Company did not violate this Section 7.3 with respect to such Person), the Company may (acting upon the recommendation of the Company Board), subject to compliance with this Section 7.3(b) and Section 7.3(c):
(i) provide information and data concerning the Company and its Subsidiaries and access to the Company and its Subsidiaries’ properties, books and records in response to a request to the Person who made such Acquisition Proposal; provided that substantially concurrently (but in any event within twenty-four (24) hours after the provision of such information or data), the Company shall make available to Parent any such information or data concerning the Company or its Subsidiaries that the Company provides to any such Person that was not previously made available to Parent and that, prior to furnishing any such information, the Company receives from the Person making 63
such Acquisition Proposal an executed confidentiality agreement with terms that are at least as restrictive to the other party as the terms in the Confidentiality Agreement are on Parent (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making or amending of an Acquisition Proposal, but shall not include any restrictions that would reasonably be expected to restrain the Company from satisfying its obligations contemplated by Section 7.3(c) or that would otherwise call for an exclusive right to negotiate with the Company prior to the termination of this Agreement) (any confidentiality agreement satisfying such criteria, a “Permitted Confidentiality Agreement”); and
(ii) engage or otherwise participate in any discussions or negotiations with any such Person regarding such unsolicited, bona fide written Acquisition Proposal, in each case of clause (i) and this clause (ii) of this Section 7.3(b), if, and only if, prior to taking any action described in clause (i) or this clause (ii) of this Section 7.3(b), the Company Board determines in good faith (after consultation with its legal advisor) that (A) based on the information then available and after consultation with a financial advisor of nationally recognized reputation that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal and (B) based on the information then available, including the terms and conditions of such Acquisition Proposal and those of this Agreement, failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law; provided that prior to engaging or otherwise participating in any such discussions or negotiations with or furnishing any information to such Person, the Company gives Parent written notice in accordance with Section 7.3(c). The Company acknowledges and agrees that any action, that if taken by the Company would be a breach of this Section 7.3, is taken by a Representative of the Company, such action shall be deemed to constitute a breach of this Section 7.3 by the Company. (Pages 69-70) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_68 | Section 6.3 No Solicitation by the Company. <omitted> (b) From and after the date of this Agreement, the Company and its officers and directors will not, will cause the Company’s Subsidiaries and their respective officers and directors not to, and will use their reasonable best efforts to cause the other Representatives of the Company and its Subsidiaries not to, directly or indirectly: <omitted> (ii) engage in, continue or otherwise participate in any discussions with any Person with respect to or negotiations with any Person with respect to, relating to, or in furtherance of a Company Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Competing Proposal; (iii) furnish any non-public information regarding the Company or its Subsidiaries, or access to the properties, assets or employees of the Company or its Subsidiaries, to any Person in connection with or in response to any Company Competing Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to a Company Competing Proposal; <omitted>
(e) <omitted> (ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Section 6.3(b)(ii) or Section 6.3(b)(iii) with any Person if (1) the Company receives a bona fide written Company Competing Proposal from such Person that was not solicited at any time following the execution of this Agreement and (2) such Company Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board or any committee thereof in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions that prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) that any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly (and in any event within 24 hours) after) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board or any committee thereof determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that such Company Competing Proposal is, or would reasonably be expected to lead to, a Company Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Pages 70-71) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_34 | Section 5.2 No Solicitation by the Company. <omitted>
(b) Notwithstanding anything to the contrary contained in Section 5.2(a) or any other provisions of this Agreement, if at any time prior to obtaining the Stockholder Approval, the Company or any of its Representatives receives a bona fide written Company Takeover Proposal from any Person or group of Persons, which Company Takeover Proposal did not result from any breach of this Section 5.2 (other than any violation that is immaterial in scope and effect), the Company and its Representatives may to the extent that the Company Board or any duly constituted and authorized committee thereof determines in good faith, after consultation with financial advisors and legal counsel, that the failure to take such action, in light of the Company Takeover Proposal and the terms of this Agreement would be inconsistent with the Company Board’s fiduciary duties under applicable Law and that such Company Takeover Proposal constitutes or would reasonably be expected to lead to a Company Superior Proposal, then the Company and its Representatives may (x) furnish, following execution of an Acceptable Confidentiality Agreement with such Person, information (including non-public information) with respect to the Company and its Subsidiaries to the Person or group of Persons who has made such Company Takeover Proposal; provided that the Company shall, prior to such disclosure provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is made available to such Person to the extent not previously provided to Parent or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Company Takeover Proposal. (Page 46) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_71 | Section 6.9 No Solicitation.
<omitted>
provided, however, that, notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may engage in any such discussions or negotiations and provide any such information in response to a bona fide written Acquisition Proposal that has not been withdrawn if (A) such bona fide written Acquisition Proposal did not result from a breach of this Section 6.9, (B) prior to providing any material non-public information regarding the Company to any Third Person in response to an Acquisition Proposal, the Company receives from such Third Person (or there is then in effect with such party) an executed confidentiality agreement that contains nondisclosure provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement, (C) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and (D) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to take such action would be inconsistent with the Company Board’s fiduciary obligations to the Company Stockholders under applicable Law (Page 35) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_48 | 7.2. Company Acquisition Proposals. (a) <omitted> Notwithstanding anything to the contrary in the foregoing provisions of this Section 7.2(a), prior to the time, but not after, the Requisite Company Stockholder Approvals are obtained, the Company and its Representatives may, after complying with Section 7.2(e), (A) provide information in response to a request therefor by a Person who has made an unsolicited bona fide written Company Acquisition Proposal after the date of this Agreement that did not result from a breach in any material respect of this Section 7.2 if the Company receives from the Person so requesting such information an executed confidentiality agreement on terms not less restrictive to such Person than those contained in the Confidentiality Agreement; provided, however, that such information has previously been made available to Parent or is made available to Parent prior to or promptly after the time such information is made available to such Person; and (B) engage or otherwise participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Company Acquisition Proposal, if and only to the extent that, (I) prior to taking any action described in clause (A) or (B) directly above, the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith after consultation with its outside legal counsel that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (II) in each such case referred to in clause (A) or (B) directly above, the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in good faith based on the information then available and after consultation with its outside legal counsel and financial advisor that such Company Acquisition Proposal either constitutes a Company Superior Proposal or could reasonably be expected to result in a Company Superior Proposal. <omitted>
“Company Superior Proposal” means an unsolicited bona fide written Company Acquisition Proposal that would result in any Person (other than the Company, Parent, Merger Sub, Merger Sub II or any controlled Affiliate thereof) becoming the beneficial owner, directly or indirectly, of fifty percent (50%) or more of the assets (on a consolidated basis) or fifty percent (50%) or more of the total voting power of the equity securities of the Company (or of the surviving entity in a merger involving the Company or the resulting direct or indirect parent of the Company or such surviving entity) that the Company Board (acting upon the recommendation of the Special Committee) or the Special Committee has determined in its good faith judgment, after consultation with its outside financial advisor(s) and outside legal counsel (a) would result in a transaction that, if consummated, would be more favorable to the stockholders of the Company (other than Parent and its Affiliates) from a financial point of view than the Mergers (after taking into account any amendments or other revisions to the terms and conditions of this Agreement agreed to by Parent in writing pursuant to Section 7.2(b) and the time likely to be required to consummate such Company Acquisition Proposal) and (b) is reasonably capable of being consummated on the terms so proposed. (Pages 42-43) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_28 | 7.2 Acquisition Proposals; Change of Recommendation <omitted> (b) Exceptions to No Solicitation. Notwithstanding anything to the contrary set forth in this Section 7.2, but subject to the provisions of Section 7.2(c), after the execution and delivery of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement pursuant to Article IX, the Company, its Subsidiaries and its and their respective Representatives may, in response to an unsolicited bona fide written Acquisition Proposal that is made after the execution and delivery of this Agreement (but only if the Company did not violate (other than in immaterial respects) any provision of this Section 7.2 with respect to the Person or Group making such Acquisition Proposal): (i) provide non-public and other information and data concerning the Company and its Subsidiaries and access to the Company and its Subsidiaries’ properties and books and records in response to a request from the Person or Group (or their Representatives) who made such an Acquisition Proposal; provided that, to the extent applicable, correct and complete copies of such information or data or access has previously been made available to Parent, or is made available to Parent prior to or substantially concurrently with the time such information and/or access is made available to such Person or Group, and prior to providing any such information or data or access, the Company and the Person or Group making such Acquisition Proposal shall have entered into a legally binding confidentiality agreement with terms not materially less restrictive in the aggregate to such Person or Group than the terms in the Confidentiality Agreement are on Counterparty (as defined in the Confidentiality Agreement) (it being understood that such confidentiality agreement need not contain a standstill provision or otherwise prohibit the making or amending of an Acquisition Proposal if such Acquisition Proposal is made directly to the Company and not publicly disclosed, but shall not include any restrictions that would reasonably be expected to restrain the Company from satisfying its obligations contemplated by Section 7.2(c)) (any confidentiality agreement satisfying such criteria, a “Permitted Confidentiality Agreement”); and (ii) engage or otherwise participate in any discussions or negotiations with any such Person or Group and their Representatives regarding such Acquisition Proposal (it being understood that, notwithstanding the remainder of this clause (ii), the Company and its Representatives may at any time contact in writing any such Person or Group to the extent necessary to clarify the terms and conditions of such Acquisition Proposal, so long as a copy of such written communication is promptly provided to Parent), if, prior to taking any action described in clause (i) or this clause (ii) of this Section 7.2(b), the Company Board determines in good faith, after consultation with outside legal counsel, that based on the information then available, including the terms and conditions of such Acquisition Proposal and those of this Agreement, and after consultation with an independent financial advisor of nationally recognized reputation, that (A) such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (B) the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. (Pages 71-72) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_70 | (c) Superior Proposal. Notwithstanding anything to the contrary contained in this Agreement, if, at any time from and after the No-Shop Period Start Date and prior to the Offer Closing, the Company receives a bona fide written Takeover Proposal that is not withdrawn from any Person that did not result from or involve a breach of Section 6.03(b), and if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, (i) that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, and (ii) failure to take the actions set forth in clauses (A) and (B) below would be inconsistent with the Company Board’s fiduciary duties under applicable Law, then the Company and its Representatives may, in response to such Takeover Proposal, (A) furnish, pursuant and subject to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the Company and its Subsidiaries to the Person that has made such written Takeover Proposal and its Representatives; provided, that the Company shall, (x) provide Parent with a copy of such executed Applicable Confidentiality Agreement promptly (and in no event later than 24 hours) after execution and (y) prior to or substantially concurrently with the delivery to such Person, provide to Parent any information or data concerning the Company or any of its Subsidiaries that is provided or made available to such Person or its directors, officers, employees, investment bankers, attorneys, accountants and other advisors or Representatives, whether in writing or orally, unless such information has been previously provided to Parent, in which case the Company shall promptly (and in no event later than 24 hours) provide written notification to Parent of the information and data so provided (unless such information was not previously provided to Parent or Merger Sub at the request of Parent or Merger Sub or to comply with applicable Law); and (B) engage in, facilitate or otherwise participate in discussions or negotiations with the Person making such Takeover Proposal and its Representatives regarding such Takeover Proposal. The Company Board shall promptly (and in any event within 24 hours) notify Parent in writing if the Company Board makes the determinations set forth in this Section 6.03(c). Nothing in this Section 6.03(c) shall limit the Company’s rights prior to the Cut-Off Time with respect to an Excluded Party. (Page 55) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_117 | 6.3 No Solicitation by the Company. <omitted> (ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Sections 6.3(b)(ii) or 6.3(b)(iii) with respect to a Competing Proposal only if such Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished and no discussions or negotiations regarding a Competing Proposal may occur until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions which prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly after (and in any event no later than twenty-four (24) hours after receipt thereof)) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board or any committee thereof determines in good faith, after consultation with its financial advisors of nationally recognized reputation and outside legal counsel, that such Competing Proposal is, or would reasonably be expected to lead to, a Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Page 60) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_47 | 4.2 Acquisition Proposals. <omitted> (c) Notwithstanding anything to the contrary set forth in Section 4.2(b), at any time prior to the time the Company Requisite Vote is obtained, the Company may, if the Company receives a written Acquisition Proposal after the date of this Agreement that is not preceded by a breach of Section 4.2, (i)provide information (including access to the employees of the Company and its Subsidiaries), provided that any non-public information not previously provided to Parent is made available to Parent promptly (and in any event within twenty-four (24) hours following the time such non-public information is made available to such Person), in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Company receives from the Person so requesting such information an executed Acceptable Confidentiality Agreement; provided, that, competitively sensitive information or data provided to any such Person who is a competitor of the Company or any of its 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, (ii)contact a Person who has made an unsolicited bona fide written Acquisition Proposal solely to clarify the terms and conditions thereof or (iii)engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal, in each case if and only to the extent that, prior to taking any action described in clause (c)(i) or (c)(iii)above, (A)the Company Board determines, in good faith, after consultation with its outside legal counsel and Financial Advisor, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law and (B)the Company Board has determined in good faith based on the information then available and after consultation with its outside legal counsel and an independent financial advisor of nationally recognized reputation that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal. “Acceptable Confidentiality Agreement” means an executed confidentiality agreement with terms that are no less favorable in the aggregate to and not less restrictive in any material respect than in the Confidentiality Agreement which agreement shall not restrict the Company from complying with its obligations under this Agreement. (Pages 20-21) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_100 | 5.3. No Solicitation.
<omitted>
(b) Superior Proposals. Notwithstanding anything to contrary set forth in this Section 5.3, from the date of this Agreement until the Company obtains the Requisite Stockholder Approval, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Advisor), following the execution of an Acceptable Confidentiality Agreement, participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries to any Person or its Representatives (including, for these purposes, sources of financing) that has made or delivered to the Company a bona fide written Acquisition Proposal after the date of this Agreement did not result or arise from a breach of Section 5.3(a), but only if the Company Board has determined in good faith (after consultation with its financial advisor and outside legal counsel) that (i) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal; and (ii) the failure to take the actions contemplated by this Section 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Law. In connection with the foregoing, the Company will prior to or contemporaneously make available to Parent any non-public information concerning the Company and its Subsidiaries that is provided to any such Person or its Representatives that was not previously made available to Parent. (Page 66) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_144 | SECTION 5.02.No Solicitation. <omitted> Notwithstanding the foregoing, at any time prior to receipt of the Company Stockholder Approval, if the Company Board receives a written bona fide Acquisition Proposal after the date hereof that was not solicited by the Company or its Representatives and did not otherwise result from a breach or deemed breach of this Section 5.02(a) and that (I) the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or would reasonably be expected to lead to a Superior Proposal, and (II) the Company Board determines in good faith, after consultation with outside legal counsel, that failure to take the actions specified in the following clauses (x) and/or (y) of this sentence with respect to such Acquisition Proposal would be inconsistent with its fiduciary duties to the stockholders of the Company under Delaware Law, then subject to providing prior written notice (before taking the actions in the following clauses (x) or (y) hereof) of its decision to take such action to Parent as promptly as practicable after such determination was reached (and in any event, no later than 24 hours thereafter) and compliance with Section 5.02(c), the Company Board may (x) furnish information with respect to the Company to the Person making such Acquisition Proposal and its Representatives pursuant to a confidentiality agreement not materially less restrictive in the aggregate of the other party than the Confidentiality Agreement provided that, a Person who within the last twelve months that has entered into a confidentiality agreement with the Company relating to a purchase of, or business combination with, the Company shall not be required to enter into a new or revised confidentiality agreement if such confidentiality agreement remains in effect with a term of at least twelve (12) months and does not prohibit the Company from complying with this Section 5.02, and such existing confidentiality agreement shall be deemed to be an acceptable confidentiality agreement hereunder (provided, that any information provided to such Person shall have previously been made available to Parent or shall be made available to Parent prior to or at the same time as it is provided to such Person, and provided further that such confidentiality agreement shall not prohibit or purport to prohibit the Company in any way from complying with this Section 5.02 or this Agreement or include any provision calling for an exclusive right to negotiate with the Company, the Company Board or their Representatives) and (y) participate in discussions or negotiations with such Person and its Representatives regarding any Acquisition Proposal (Page 52) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_114 | Section 6.2 No-Shop Period. <omitted> (c) Notwithstanding anything in Section 6.2(a) to the contrary, at any time prior to the adoption of this Agreement by the Company’s stockholders, if the Company receives an Alternative Acquisition Proposal from a third party that was not received in response to, or as a result of, actions that constitute a breach of Section 6.2(a), (i) the Company and its Representatives may contact the third party making such Alternative Acquisition Proposal solely to clarify the terms and conditions thereof, and (ii) if the Company Board determines in good faith, after consultation with outside legal and financial advisors, that such Alternative Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal and the Company Board (or a committee thereof) 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 6.2 would be inconsistent with its fiduciary duties under applicable Law, then the Company may: (A) engage in discussions or negotiations with the third party (including its Representatives and potential equity and debt financing sources) with respect to such Alternative Acquisition Proposal, and (B) furnish nonpublic information 37
to the third party making such Alternative Acquisition Proposal (and its Representatives and potential equity and debt financing sources) if, prior to so furnishing such information, the third party has executed an Acceptable Confidentiality Agreement with the Company, provided that the Company provides to Parent and Merger Sub (and their respective Representatives) any information or data that is provided to such third party that was not previously made available to Parent or Merger Sub prior to or substantially concurrently with the time it is provided to such third party (and in any event within 24 hours thereof). The Company shall notify Parent that it has entered into an Acceptable Confidentiality Agreement within 24 hours after the execution thereof. (Pages 41-42) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_98 | Section 5.4 Non-Solicitation; Change in Recommendation. <omitted> (b) The foregoing notwithstanding, if at any time before the time the Company Required Vote is obtained, the Company Board receives a bona fide written Acquisition Proposal made after the date of this Agreement that has not resulted from a Willful Breach of this Section 5.4, the Company Board, directly or indirectly through its Representatives, may, if the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal is or would reasonably be expected to lead to a Superior Proposal and that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, subject to compliance with Section 5.4(c), (A) engage in negotiations or discussions with such Third Party and its Representatives and financing sources and (B) furnish to such Third Party and its Representatives and financing sources information relating to the Company or any of its Subsidiaries pursuant to a confidentiality agreement that (1) does not contain any provision that would prevent the Company from complying with its obligation to provide disclosure to Parent pursuant to this Section 5.4 and (2) contains provisions that, in each case, are not materially less favorable to the Company than those contained in the Confidentiality Agreement (provided that no such confidentiality agreement shall be required to contain any standstill or similar provisions) (such a confidentiality agreement, an “Acceptable Confidentiality Agreement”), a copy of which Acceptable Confidentiality Agreement shall be provided to Parent promptly after its execution; provided, that all such information (to the extent that such information is non-public and has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, substantially concurrently with the time it is provided or made available to such Third Party. (Page 25) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_127 | SECTION 5.02. Solicitation; Change in Recommendation. <omitted> (b) Notwithstanding the limitations contained in Section 5.02(a), if at any time on or after the date hereof and prior to obtaining the Stockholder Approval, the Company or any of its Representatives receives a bona fide Takeover Proposal, which Takeover Proposal did not result from a material breach of Section 5.02(a), (i) the Company and its Representatives may contact and engage in discussions with such Person or group of Persons making the Takeover Proposal or its or their Representatives solely to clarify the terms and conditions thereof or to request that such Takeover Proposal made orally be made in writing and (ii) if the Board of Directors of the Company or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that any such Takeover Proposal constitutes 38
or would reasonably be expected to result in a Superior Proposal, and the failure to take such actions would be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company and any of its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant to an Acceptable Confidentiality Agreement information (including non-public information) with respect to the Company to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives; provided that the Company shall promptly (and in any event within 24 hours) provide to Parent any non-public information concerning the Company that is provided to any Person given such access which was not previously provided to Parent or its Representatives and (y) following the execution of an Acceptable Confidentiality Agreement, engage in or otherwise participate in discussions or negotiations regarding such Takeover Proposal with the Person or group of Persons making such Takeover Proposal and its or their Representatives and financing sources. (Pages 42-43) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_64 | Section 4.4 No Solicitation of Transactions. <omitted> (c) Notwithstanding anything in this Agreement to the contrary, at any time following the Agreement Date and prior to obtaining the Company Stockholder Approval, in response to a written Acquisition Proposal that did not result from a breach of the terms of this Section 4.4 (a “Qualifying Acquisition Proposal”) that the Company Board determines in good faith (after consultation with one or more of its financial advisors and with its outside legal counsel) that such Qualifying Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal and that the failure to take the action described in clause (i) or (ii) below would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, the Company and the Company Representatives shall be permitted to (i) furnish to the Person that has made the Qualifying Acquisition Proposal (and such Person’s representatives) information relating to the Company and its Subsidiaries and/or afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in each case pursuant to an Acceptable Confidentiality Agreement, provided that the Company shall substantially concurrently provide to Parent any non-public information concerning the Company that is provided to (or given access to) any Person which was not previously provided or made available to Parent and (ii) engage or participate in discussions or negotiations with the Person (or such Person’s representatives) that has made the Qualifying Acquisition Proposal; provided that prior to or concurrently with the Company first taking such actions with respect to a Qualifying Acquisition Proposal as described in clauses (i) or (ii) above, the Company shall provide written notice to Parent of such determination of the Company Board as provided for in this Section 4.4(c). (Page 22) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_150 | 4.2 Company No Solicitation. (a) The Company will not, and the Company will cause each of its Subsidiaries and its and their respective Representatives not to, except as expressly permitted by this Section 4.2 or Section 4.5, directly or indirectly: <omitted> (v) resolve or agree to do any of the foregoing; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, prior to obtaining the Required Company Stockholder Vote, the Company and its Representatives may engage or otherwise participate in discussions or negotiations with, and provide information to, any Person (or its Representatives) that has made a bona fide written Company Acquisition Proposal after the date hereof that did not result from any breach of this Section 4.2(a) or Section 4.2(c) by the Company, any of its Subsidiaries or any of its or their respective Representatives if: (A) prior to taking any such action, the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and its financial advisor, that such Company Acquisition Proposal either constitutes a Company Superior Proposal or would reasonably be expected to lead to a Company Superior Proposal and that failure to engage in such discussions or negotiations, or provide such information, would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties to the Company and its stockholders under applicable Legal Requirements; and (B) prior to providing any information regarding the Company or any Subsidiary of the Company to such third party in response to such Company Acquisition Proposal, the Company receives from such third party (or there is then in effect with such party) an executed confidentiality agreement that contains nondisclosure provisions that are at least as restrictive of such third party as the Non-Disclosure Agreement and that does not prohibit compliance by the Company with this Section 4.2. Prior to or substantially concurrently with providing any non-public information to such third party, the Company shall make such non-public information available to Parent (to the extent such non-public information has not been previously made available by the Company to Parent). The Company shall promptly (and in any event within 24 hours) inform Parent if the Company furnishes non-public information and/or enters into discussions or negotiations as provided for in this Section 4.2(a) and will keep Parent reasonably informed in writing, on a current basis (and, in any event, within 24 hours), of the status and terms of any Company Acquisition Proposal (including any material changes to the terms thereof) and the status of any discussions and negotiations with respect thereto. (Page 58) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_151 | 5.3 Solicitation of Acquisition Proposals
<omitted>
(b) Permitted Activities. Notwithstanding anything to the contrary in this Section 5.3, until the Offer Acceptance Time, the Company and the Company Board (or a committee thereof) may, directly or indirectly through one or more of their Representatives (including the Company Financial Advisor), following the execution of an Acceptable Confidentiality Agreement, (i) participate or engage in discussions or negotiations with; (ii) furnish any non-public information relating to the Company or any of its Subsidiaries to; (iii) afford access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries to; or (iv) otherwise facilitate the making of a Superior Proposal by, in each case, any Person or its Representatives that has made, renewed or delivered to the Company a bona fide unsolicited written Acquisition Proposal that did not result from a breach of Section 5.3(a); provided, that, the Company and its Representatives may contact any third Person in writing (with a request that any response from such third 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 constitutes a Superior Proposal (without the Company Board being required to make the determination in the following proviso), it being agreed that if the 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, prior to taking any actions contemplated by this Section 5.3(b), the Company Board (or a committee thereof) 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 is reasonably likely to lead to a Superior Proposal and (2) the failure to take the actions contemplated by this Section 5.3(b) would be inconsistent with its fiduciary duties pursuant to applicable Law. (Page 68) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_31 | 6.3 No Solicitation by the Company. <omitted>
(e) Notwithstanding anything in this Agreement to the contrary: <omitted>
(ii) prior to, but not after, the receipt of the Company Stockholder Approval, the Company and its Representatives may engage in the activities prohibited by Sections 6.3(b)(ii) or 6.3(b)(iii) (and, only with respect to a Company Competing Proposal that satisfies the requirements in the following clauses (1) and (2), may solicit, propose, knowingly encourage, or knowingly facilitate any inquiry or the making of any proposal or offer with respect to such Company Competing Proposal or any modification thereto) with any Person if (1) the Company receives a bona fide written Company Competing Proposal from such Person that was not solicited at any time following the execution of this Agreement and (2) such Company Competing Proposal did not arise from a breach of the obligations set forth in this Section 6.3; provided, however, that (A) no information that is prohibited from being furnished pursuant to Section 6.3(b) may be furnished until the Company receives an executed confidentiality agreement from such Person containing limitations on the use and disclosure of non-public information furnished to such Person by or on behalf of the Company that are no less favorable to the Company in the aggregate than the terms of the Confidentiality Agreement, as determined by the Company Board in good faith after consultation with its legal counsel; (provided, further, that such confidentiality agreement does not contain provisions which prohibit the Company from providing any information to Parent in accordance with this Section 6.3 or that otherwise prohibits the Company from complying with the provisions of this Section 6.3), (B) that any such non-public information has previously been made available to, or is made available to, Parent prior to or concurrently with (or in the case of oral non-public information only, promptly (and in any event within the shorter of one (1) Business Day and 48 hours) after) the time such information is made available to such Person, (C) prior to taking any such actions, the Company Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Company Competing Proposal is, or would reasonably be expected to lead to, a Company Superior Proposal and (D) prior to taking any such actions, the Company Board determines in good faith after consultation with its outside legal counsel that failure to take such action would be inconsistent with the fiduciary duties owed by the Company Board to the stockholders of the Company under applicable Law; (Page 53) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_72 | Section 6.02 Non-Solicitation
<omitted>
(b) Notwithstanding anything to the contrary contained in Section 6.02(a) but subject to compliance with the other provisions of this Section 6.02, if, after the date of this Agreement and prior to the receipt of the Required Company Stockholder Approval (i) the Company has received a written Acquisition Proposal from a Third Party that did not result from a breach of Section 6.02(a) and that is not withdrawn and (ii) the Company Board (upon the recommendation of the Company Special Committee) or the Company Special Committee determines in good faith, after consultation with its financial and outside legal advisors (including the Special Committee Financial Advisor), that (x) such Acquisition Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal and (y) the Company Special Committee determines in good faith, after consultation with outside counsel, that failure to take the actions contemplated by clauses (A) and (B) below would be inconsistent with the directors’ fiduciary duties under Applicable Law, then the Company and its Representatives may, subject to the execution of a customary confidentiality agreement with such Third Party that contains provisions that in the aggregate are no less favorable to the Company than those contained in the Confidentiality Agreement and that does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 6.02 (each, an “Acceptable Confidentiality Agreement”) (A) furnish non-public information, and afford access to the books or records or officers of the Acquired Companies, to such Third Party and (B) engage in discussions and negotiations with such Third Party with respect to the Acquisition Proposal; provided, that any non-public information concerning the Acquired Companies made available to any Third Party shall, to the extent not previously made available to Parent, be made available to Parent as promptly as reasonably practicable (and in any event within twenty-four (24) hours) after it is made available to such Third Party. Notwithstanding anything to the contrary set forth in this Section 6.02 or elsewhere in this Agreement, the Company, its Subsidiaries and its Representatives may, in any event (without the Company Board (upon the recommendation of the Company Special Committee) or the Company Special Committee having to make the determination in clause (ii) of the preceding sentence), contact any Third Party to (i) seek to clarify and understand the terms and conditions of any inquiry or proposal made by such Third Party solely to, and only to the extent necessary to, determine whether such inquiry or proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal and (ii) inform such Third Party that has made or, to the Knowledge of the Company, is considering making an Acquisition Proposal of the provisions of this Section 6.02. (Page 60) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_107 | SECTION 7.8. No Solicitation. (a) <omitted> Notwithstanding anything in this Agreement to the contrary, if in response to an unsolicited bona fide written Acquisition Proposal made by a Third Party after the date hereof in circumstances not involving a breach in any material respect of this Section 7.8, the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law, then the Company may, at any time prior to the Offer Closing (but in no event after such time), enter into a customary confidentiality agreement (x) containing confidentiality and other terms that are no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreement and (y) that does not prevent the Company from providing any 70
information to Parent in accordance with this Agreement or otherwise comply with its obligation under this Agreement (an “Acceptable Confidentiality Agreement”) with such Third Party making such an Acquisition Proposal and thereafter (1) furnish information and data with respect to the Company and the Company Subsidiaries and afford access to the business, personnel, properties, assets, books or records of the Company and the Company Subsidiaries, in each case, pursuant to such Acceptable Confidentiality Agreement, and (2) enter into, maintain and participate in discussions or negotiations with, the Third Party making such Acquisition Proposal and its Representatives; provided, that the Company will concurrently provide to Parent any information and data concerning the Company or any Company Subsidiary or access provided to such Third Party that was not previously made available to Parent. (Pages 74-75) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
main | contract_81 | Section 5.4 Non-Solicitation. <omitted> Notwithstanding anything to the contrary in this Agreement, prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, Lambda and the Lambda Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(a) with respect to a third party if (w) after the date of this Agreement and prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, Lambda receives a written Acquisition Proposal with respect to Lambda from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Lambda or any of the Lambda Subsidiaries or any of their respective Representatives), (x) Lambda provides Pi the notice 66
required by Section 5.4(g) with respect to such Acquisition Proposal, (y) the Lambda Board determines in good faith (after consultation with Lambda’s financial advisors and outside legal counsel) that such proposal constitutes or could reasonably be expected to lead to a Superior Proposal with respect to Lambda, and (z) the Lambda Board determines in good faith (after consultation with Lambda’s outside legal counsel) that the failure to participate in such discussions or negotiations or to disclose such information or data to such third party would be inconsistent with its fiduciary duties; provided that Lambda shall not deliver any information to such third party without first entering into an Acceptable Confidentiality Agreement with such third party. Notwithstanding the limitations set forth in this Section 5.4(a) and subject to compliance with Lambda’s obligations contained in Section 5.4(g), if Lambda receives, following the date hereof and prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, a bona fide written Acquisition Proposal that did not result from a knowing and intentional breach of this Section 5.4, Lambda and its Representatives may contact the Person or any of such Person’s Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that Lambda may inform itself about such Acquisition Proposal. Nothing contained in this Section 5.4 shall prohibit Lambda or the Lambda Board from taking and disclosing to the Lambda Stockholders a position with respect to an Acquisition Proposal with respect to Lambda pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law. (Pages 71-72) | "Inconsistent" with fiduciary duties | 1 | Fiduciary exception: Board determination standard-Answer (no-shop) | <NONE> | Fiduciary exception: Board determination (no-shop) | 74 | Deal Protection and Related Provisions |
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