|
|
 | | | |
- close
- close
- close
- close
| |||||||||
This excerpt taken from the CVS 8-K filed Aug 13, 2008. Adverse
Recommendation Change”), (iv) grant any waiver or release under any
standstill or similar agreement with respect to any class of equity securities
of the Company
46
or any of
its Subsidiaries, (v) approve any transaction, or any Person becoming an
“interested stockholder”, under Section 3-603 of Maryland Law, or exempt any
transaction or Person from any other Antitakeover Statute, or (vi) enter into
any agreement in principle, letter of intent, term sheet, merger agreement,
purchase agreement, option agreement or other similar instrument relating to an
Acquisition Proposal. It is agreed that, subject to Section 7.04(b),
any violation of the restrictions on the Company set forth in this Section by
any Representative of the Company or any of its Subsidiaries shall be a breach
of this Section by the Company.
(b) Exceptions. Notwithstanding
Section 7.04(a), at any time prior to the Acceptance Time:
(i) the
Company, directly or indirectly through advisors, agents or other
intermediaries, may (A) engage in negotiations or discussions with any Third
Party and its Representatives that, subject to the Company’s compliance with
Section 7.04(a), has made a bona
fide Acquisition Proposal that the Board of Directors reasonably believes
will lead to a Superior Proposal and (B) furnish to such Third Party or its
Representatives non-public information relating to the Company or any of its
Subsidiaries pursuant to a confidentiality agreement with such Third Party with
terms no less favorable to the Company than those contained in the
Confidentiality Agreement; provided
that all such 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, prior to or substantially concurrently with the
time it is provided or made available to such Third Party); and
(ii) following
receipt of such Superior Proposal, (A) the Board of Directors may make an
Adverse Recommendation Change and (B) concurrently with the termination of this
Agreement pursuant to Section 11.01(d)(ii), take the actions set forth in
Sections 7.04(a)(v) and 7.04(a)(vi);
in each
case referred to in the foregoing clauses (i) and (ii) only if the Board of
Directors determines in good faith, after consultation with outside legal
counsel, that the failure to take such action would be inconsistent with the
statutory duty of the members of the Board of Directors, as directors, under
Maryland Law.
In addition, nothing
contained herein shall prevent the Board of Directors from (A) complying with
Rule 14e-2(a) under the 1934 Act or Item 1012(a) of Regulation M-A under the
1934 Act with regard to an Acquisition Proposal, so long as any action taken or
statement made to so comply is consistent with this Section 7.04 (provided
that any such action taken or statement made that relates to
47
an
Acquisition Proposal shall be deemed to be an Adverse Recommendation Change
unless the Board of Directors reaffirms the Company Board Recommendation in such
statement or in connection with such action) or (B) issuing a “stop, look and
listen” disclosure or similar communication of the type contemplated by Rule
14d-9(f) under the 1934 Act.
(c) Required
Notices. The Board of Directors shall not take any of the
actions referred to in Section 7.04(b) unless the Company shall have delivered
to Parent a prior written notice advising Parent that it intends to take such
action, and, after taking such action, the Company shall continue to advise
Parent on a current basis of the status and terms of any discussions and
negotiations with the Third Party. In addition, the Company shall
notify Parent promptly (but in no event later than 24 hours) after receipt by
the Company (or any of its Representatives) of any Acquisition Proposal, any
inquiry or request for discussion from a Third Party regarding an Acquisition
Proposal or any request for information relating to the Company or any of its
Subsidiaries or for access to the business, properties, assets, books or records
of the Company or any of its Subsidiaries by any Third Party that may be
considering making, or has made, an Acquisition Proposal. The Company
shall provide such notice orally and in writing and shall identify the Third
Party making, and the terms and conditions of, any such Acquisition Proposal,
indication or request, and shall promptly (but in no event later than 24 hours
after receipt) provide to Parent copies of all correspondence and written
materials sent or provided to the Company or any of its Subsidiaries that
describe any terms or conditions of any Acquisition Proposal. Any
material amendment to any Acquisition Proposal will be deemed to be a new
Acquisition Proposal for purposes of the Company’s compliance with this Section
7.04(c).
(d) “Last
Look”. Further, the Board of Directors of the Company shall
not make an Adverse Recommendation Change, unless (i) it has received an
Acquisition Proposal that constitutes a Superior Proposal, (ii) the Company
promptly notifies Parent in writing at least five Business Days before taking
that action of its intention to do so, attaching the most current version of the
proposed agreement under which such Superior Proposal is proposed to be
consummated and the identity of the third party making the Acquisition Proposal,
and (iii) Parent does not make, within five Business Days after its receipt
of that written notification, an offer that is at least as favorable to the
stockholders of the Company as such Superior Proposal (it being understood and
agreed that any amendment to the financial terms or other material terms of such
Superior Proposal shall require a new written notification from the Company and
a new five Business Day period under this Section 7.04(d)).
(e) Termination
Right. If, prior to the Acceptance Time, the Board of
Directors shall have made an Adverse Recommendation Change in compliance
48
with the
terms of this Agreement (including Section 7.04(d)), the Company shall have the
right to terminate this Agreement so long as (i) at least 20 Business Days have
elapsed from the date the Company publicly announced such Adverse Recommendation
Change, (ii) at least 20 Business Days have elapsed from the date the Third
Party making such Superior Proposal publicly announced any material amendment to
any of the terms or conditions of such Superior Proposal (it being understood
that any change to the financial terms shall be deemed a material amendment),
(iii) at least 10 Business Days have elapsed from the date of any bona
fide increase by Parent of the Offer Price with a view to satisfying the
Minimum Condition and (iv) the Minimum Condition is not satisfied; provided
that, simultaneously with any termination pursuant to this Section 7.04(e), the
Company shall pay the amount due pursuant to Section 12.04(b) in connection with
such termination.
(f) Definition
of Superior Proposal. For purposes of this Agreement, “ This excerpt taken from the CVS 8-K filed Nov 2, 2006. Adverse Recommendation Change” means either of the following, as the context may indicate, (a) either (i) any failure by the Board
of Directors of CVS to make, or any withdrawal or modification in a manner adverse to Caremark of, the CVS Board Recommendation or (ii) any recommendation by CVS’s Board of Directors of an Acquisition Proposal or (b) either (i) any failure by
the Board of Directors of Caremark to make, or any withdrawal or modification in a manner adverse to CVS of, the Caremark Board Recommendation or (ii) any recommendation by Caremark’s Board of Directors of an Acquisition Proposal.
“ This excerpt taken from the CVS DEFA14A filed Nov 2, 2006. Adverse Recommendation Change” means either of the following, as the context may indicate, (a) either (i) any failure by the Board
of Directors of CVS to make, or any withdrawal or modification in a manner adverse to Caremark of, the CVS Board Recommendation or (ii) any recommendation by CVS’s Board of Directors of an Acquisition Proposal or (b) either (i) any failure by
the Board of Directors of Caremark to make, or any withdrawal or modification in a manner adverse to CVS of, the Caremark Board Recommendation or (ii) any recommendation by Caremark’s Board of Directors of an Acquisition Proposal.
“ | EXCERPTS ON THIS PAGE:
RELATED TOPICS for CVS: |
| |||||||
