General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an Acquisition Proposal, (iii) (A) fail to make, withdraw, modify or qualify in any manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Palm Inc), Agreement and Plan of Merger (Hewlett Packard Co)
General Prohibitions. Neither Subject to and except as permitted by Sections 6.3(b) and 6.3(h), until the earlier of the termination of this Agreement pursuant to Article VIII hereof and the Effective Time, the Company nor any of its Subsidiaries shallshall not, nor shall the Company or any of its Subsidiaries it authorize or permit any of its Subsidiaries or any of its or their officers, respective directors, employeesofficers or employees to, and the Company shall use its reasonable best efforts to cause its investment bankers, financial advisors, attorneys, accountants, consultants accountants or other agentsadvisors, advisors agents or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposalinitiate, or knowingly encourage or facilitate, any inquiry inquiries with respect to or the making of any proposal that could constitutes or is reasonably be expected likely to lead to, the submission to a Takeover Proposal or any public announcement by any Third Party of any Acquisition ProposalTakeover Proposal or of any intention to make the same, (ii) enter into or participate in any discussions or negotiations withregarding any Takeover Proposal, furnish to any Third Party any non-public information relating (whether orally or in writing) in response to or in furtherance of any Takeover Proposal (for avoidance of doubt, it being hereby acknowledged and agreed that the foregoing shall not prohibit the Company or any of its Subsidiaries Representatives from making any Third Party aware of the provisions of this Section 6.3 in response to any Takeover Proposal, nor shall the foregoing prohibit the Company from engaging in discussions with its Representatives to the extent necessary to assist the Company in determining how to comply with the provisions of this Section 6.3 and applicable Law), or afford any Third Party access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toSubsidiaries, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party that has made, or, to or has informed the Company’s Knowledge, is seeking Company of any intention to make, or who has publicly announced an Acquisition intention to make, a Takeover Proposal, (iii) (A) fail to make, withdraw, modify or qualify in any manner adverse to Parent the Company Board Recommendation, or (B) approverecommend, adopt or recommendapprove, or publicly propose to approverecommend, adopt or recommendapprove, an Acquisition Proposal a Takeover Proposal, or announce that an Acquisition Proposal constitutes a Superior Proposal fail to make in accordance with Section 6.1(a)(ii), withdraw or modify or resolve to take any action or make any public statement inconsistent with the Company Offer Recommendation or Company Merger Recommendation (any action described of the foregoing in this clause (A) or (B) being referred to as an iii), a “Company Adverse Recommendation Change”), (iv) agree take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including approving any transaction for purposes of or approving a Third Party becoming an “interested stockholder” under Section 203 of the DGCL), or any restrictive provision of any applicable anti-takeover provision in the Company’s certificate of incorporation or bylaws, inapplicable to any transactions contemplated by a Takeover Proposal, (v) enter into any Takeover Proposal (other than a confidentiality agreement of the type referred to in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, Section 6.3(b)) or (vvi) grant any Third Party any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries. Without limiting the foregoing, it is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 the preceding sentence by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company6.3.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Natrol Inc), Agreement and Plan of Merger (Plethico Pharmaceuticals Ltd.), Agreement and Plan of Merger (Nutra Acquisition CO Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions (other than to state that the Company is not permitted to have discussions) or negotiations withwith any Third Party that is seeking to make, or has made, a Company Acquisition Proposal, (iii) furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Company Acquisition Proposal, (iiiiv) make a Company Adverse Recommendation Change, (Av) fail to make, withdraw, modify enforce or qualify in grant any manner adverse waiver or release under any standstill or similar agreement with respect to Parent any class of equity securities of the Company or any of its Subsidiaries unless the Board Recommendationof Directors of the Company determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law; provided, that the Company shall not enforce and hereby waives any provision of any such agreement that would prohibit a third party from communicating confidentially a Company Acquisition Proposal to the Company’s Board of Directors, (vi) approve any transaction under, or (B) approveany Person becoming an “interested stockholder” under, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) Section 203 of Delaware Law or (Bvii) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument relating to a Company Acquisition Proposal (other than a confidentiality agreement to the extent contemplated by Section 6.03(b)); provided that (so long as the Company and its Representatives have otherwise complied with this Section 6.03) none of the foregoing shall prohibit the Company and its Representatives from, at any time prior to the Company Stockholder Approval, participating in discussions with respect any Persons or group of Persons who has made a Company Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, or in connection with, any Acquisition a Superior Proposal, or (v) grant and any waiver or release under any standstill or similar agreement to which the Company such actions shall not be a breach of this Section 6.03(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Comcast Corp), Agreement and Plan of Merger (Time Warner Cable Inc.)
General Prohibitions. Neither Subject to Section 7.04(b), neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company 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 a party agreed that, subject to Section 7.04(b), any Person. The Company agrees that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CVS Caremark Corp), Agreement and Plan of Merger (Longs Drug Stores Corp)
General Prohibitions. Neither Except as expressly permitted pursuant to Section 6.4(b), from and after the date hereof and prior to the earlier of the termination of this Agreement in accordance with Section 10.1 and the Closing Date, the Company nor shall not (and the Company shall (A) cause its Subsidiaries not to and (B) not authorize or permit and shall instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Subsidiaries' Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of or assist any Acquisition Proposal, or any inquiry inquiries or the making of any proposal or offer that could constitutes or would reasonably be expected to lead to, to the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that has madewith respect to inquiries regarding, or, to or the Company’s Knowledge, is seeking to makemaking of, an Acquisition Proposal, (iii) (A) fail to makequalify, withdraw, or modify or qualify amend in any a manner adverse to Parent Parent, the Transaction Committee Recommendation or the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommendrecommend an Acquisition Proposal), or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal do any of the foregoing (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “"Adverse Recommendation Change”"), (iv) agree to approve, endorse, recommend or enter into (or agree or publicly propose to do any of the foregoing) any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, instrument relating to an Acquisition Proposal (other than a confidentiality agreement with respect to, or a Third Party to whom the Company is permitted to provide information in connection with, any Acquisition Proposalaccordance with Section 6.4(b )(i)), or (v) grant any waiver waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or similar agreement to which provision contained in the Company is Charter Documents other than a party waiver of the obligations of Third Parties existing as of the date of this Agreement not to seek from the Company any Personwaiver of such Third Parties' standstill obligations and granting a limited waiver if requested solely to enable such Third Parties to make an Acquisition Proposal to the Company Board. The Company agrees that any violations of shall (and the restrictions set forth in this Section 6.03 by Company shall (1) cause its Subsidiaries to and (2) instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries' Representatives shall be deemed to) cease immediately and cause to be a breach of this Agreement (including this Section 6.03) by terminated any and all existing activities, solicitations, encouragements, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the Companydate hereof with respect to any Acquisition Proposal or efforts to obtain an Acquisition Proposal, and shall also request such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries prior to the date hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Euronav NV), Agreement and Plan of Merger (Euronav NV)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal Proposal) (any action described of the foregoing in this clause (A) or (B) being referred to as (iii), an “Adverse Recommendation Change”), ) or (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal; provided, or (v) grant however, that, notwithstanding anything to the contrary in this Agreement, the parties understand and agree that the Board has waived prior to entry into this Agreement any waiver or release under provisions in any standstill or similar agreement agreements to which the Company is and/or its Subsidiary(ies) are a party that prohibit the counterparty thereto from confidentially requesting the Company to any Person. The Company agrees that any violations of amend or waive the restrictions set forth standstill provision in this Section 6.03 by any of its Representatives shall be deemed such agreement (i.e., a “don’t ask to be a breach of this Agreement waive” provision) to the extent necessary (including this Section 6.03and only to such extent) by to enable such counterparty to communicate confidentially an Acquisition Proposal to the CompanyBoard.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fogo De Chao, Inc.), Agreement and Plan of Merger (Fogo De Chao, Inc.)
General Prohibitions. Neither Except as set forth in this Section 6.03, the Company agrees that from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Section 10.01, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any other action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an take any action or make any statement inconsistent with the Company Board Recommendation or (C) fail to recommend against any Acquisition Proposal constitutes subject to Regulation 14D under the 1934 Act in a Superior Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as (iii), an “Adverse Recommendation Change”), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03Section 6.03(a) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Shanda Interactive Entertainment LTD), Agreement and Plan of Merger (Ku6 Media Co., LTD)
General Prohibitions. Neither Subject to Section 6.4(b), neither the Company nor any of its Subsidiaries the Company’s subsidiaries shall, nor shall the Company or any of its Subsidiaries the Company’s subsidiaries authorize or permit any of its or their officers, directors, employeesEmployees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any nonpublic information relating to the Company or any of its Subsidiaries the Company’s subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries the Company’s subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party third party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, modify or qualify in any manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, make an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of the Company’s subsidiaries, (v) approve any Person as “an acquiring person” or such “Person’s share acquisition” as provided in Section 23B.19.040 of the Act, or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal (other than a confidentiality agreement to the extent contemplated in Section 6.4(b)); provided, that (so long as the Company and its Representatives have otherwise complied with this Section 6.4) none of the foregoing shall prohibit the Company and its Representatives from contacting any Persons or group of Persons who have made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal, and any such actions shall not be a breach of this Section 6.4(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 6.4 by any Representative of its Representatives the Company or any of the Company’s subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 6.4 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (At&t Inc.), Agreement and Plan of Merger (Superclick Inc)
General Prohibitions. Neither Prior to the Closing, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly assist, facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, make or would be reasonably expected to make an Acquisition Proposal, ; (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Investor the Company Board Recommendation (or recommend an Acquisition Proposal or make any public statement (or statement to any of its stockholders (other than, for the avoidance of doubt, to a director of the Company in his capacity as such)) inconsistent with the Company Board Recommendation (including publicly proposing to withdraw or modify the Company Board Recommendation, or (B)) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ; (iv) agree fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law; or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument relating to an Acquisition Proposal (any such agreement, with respect to, or in connection with, any an “Alternative Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company Agreement”). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 7.04 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 7.04 by the Company.
Appears in 2 contracts
Samples: Transaction Agreement, Transaction Agreement (Foundation Medicine, Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party Party, in each case, in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that has made, or, could reasonably be expected to the Company’s Knowledge, is seeking lead to make, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal make any statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries unless 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 its fiduciary duties under Delaware Law; provided that Company shall not enforce and hereby waives any provision of any such agreement that would prohibit a Third Party from communicating confidentially an Acquisition Proposal to the Board of Directors, (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Shire Pharmaceutical Holdings Ireland Ltd.), Agreement and Plan of Merger (NPS Pharmaceuticals Inc)
General Prohibitions. Neither Subject to Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, modify or qualify in any manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, make an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries, (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal (other than a confidentiality agreement to the extent contemplated in Section 6.03(b)); provided that (so long as the Company and its Representatives have otherwise complied with this Section 6.03) none of the foregoing shall prohibit the Company and its Representatives from contacting in writing any Persons or group of Persons who has made an Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, a Superior Proposal, and any such actions shall not be a breach of this Section 6.03(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xto Energy Inc), Agreement and Plan of Merger (Exxon Mobil Corp)
General Prohibitions. Neither the Company Board, the Company nor any of its Subsidiaries shall, nor shall the Company Board, the Company or any of its Subsidiaries authorize or permit direct any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, : (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, Proposal or any inquiry proposal or the making of any proposal offer that could reasonably be expected to lead to, the submission of any to an Acquisition Proposal, ; (ii) enter into into, engage in or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries (except as required by Law) to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by with any Third Party that has made, or, to the Knowledge of the Company’s Knowledge, is seeking to make, an Acquisition Proposal, (iii) (A) fail to make, withdraw, modify or qualify in any manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommendconsidering making, an Acquisition Proposal (except to provide notification of or announce that disclose the existence of the provisions of this Section 5.2(a)); (iii) make an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), ; (iv) agree to or enter into any agreement in principle, agreement-in-principle (including any letter of intent, memorandum of understanding, intent or term sheet), merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, instrument relating to an Acquisition Proposal or in connection with, any offer that could reasonably be expected to lead to an Acquisition Proposal, or ; (v) grant waive, terminate, modify or fail to enforce any waiver or release under provision of any standstill “standstill” or similar agreement obligation of any Person (unless Company shall have first obtained the prior written consent of Parent to which such waiver, termination, modification or failure to enforce); or (vi) resolve by action of the Company is a party Board, publicly propose or agree to do any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach foregoing. For the purposes of this Agreement Agreement, an “Adverse Recommendation Change” shall occur if the Company Board (including this Section 6.03A) by withholds, withdraws, qualifies or modifies (or publicly proposes or resolves to withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger or (B) adopts, approves or recommends to the Company’s stockholders an Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Meade Instruments Corp), Agreement and Plan of Merger (Meade Instruments Corp)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions (other than to state that the Company is not permitted to have discussions) or negotiations withwith any Third Party that is seeking to make, or has made, a Company Acquisition Proposal, (iii) furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Company Acquisition Proposal, (iiiiv) make a Company Adverse Recommendation Change, (Av) fail to make, withdraw, modify enforce or qualify in grant any manner adverse waiver or release under any standstill or similar agreement with respect to Parent any class of equity securities of the Company or any of its Subsidiaries unless the Board Recommendationof Directors of the Company determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law; provided that the Company shall not enforce and hereby waives any provision of any such agreement that would prohibit a Third Party from communicating confidentially a Company Acquisition Proposal to the Company’s Board of Directors, (vi) approve any transaction under, or (B) approveany Person becoming an “interested stockholder” under, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) Section 203 of Delaware Law or (Bvii) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument relating to a Company Acquisition Proposal (other than a confidentiality agreement to the extent contemplated by Section 6.03(b)); provided that (so long as the Company and its Representatives have otherwise complied in all material respects with this Section 6.03) none of the foregoing shall prohibit the Company and its Representatives from, at any time prior to the Company Stockholder Approval, participating in discussions with respect any Persons or group of Persons who has made a Company Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Company Acquisition Proposal is, or could reasonably be expected to lead to, or in connection with, any Acquisition a Company Superior Proposal, or (v) grant and any waiver or release under any standstill or similar agreement to which the Company such actions shall not be a breach of this Section 6.03(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 6.03 by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Mergers (Charter Communications, Inc. /Mo/), Agreement and Plan of Mergers (Time Warner Cable Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shallSubject to Section 8.4(b), Target shall not, nor shall the Company or any of its Subsidiaries it authorize or permit any of its Subsidiaries or authorize any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) respective Representatives to, directly or indirectly, (iA) solicit, initiate initiate, encourage or take knowingly facilitate, any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal for Target, (B) enter into or engage in any discussions or negotiations regarding, or that could reasonably be expected to lead to, the submission any Acquisition Proposal for Target, furnish to any third party (or any Representative of any Acquisition Proposal, third party) any information (iiwhether orally or in writing) enter into or participate in any discussions or negotiations connection with, furnish or in furtherance of, any information relating to the Company or any of its Subsidiaries Acquisition Proposal for Target, or afford access to the business, properties, assets, books or records of the Company Target or any of its Subsidiaries toSubsidiaries, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party third party (or any Representative of any third party) that has made, or, to the Company’s Knowledge, is seeking to make or has informed Target of any intention to make, or has publicly announced an intention to make, an Acquisition ProposalProposal for Target, (iii) (AC) fail to make, withdraw, qualify, amend or modify or qualify in publicly propose to withdraw, qualify, amend or modify the Target Recommendation (it being understood that, subject to and without limitation of Section 8.4(f), taking a neutral position or no position with respect to any manner adverse to Parent the Company Board RecommendationAcquisition Proposal for Target shall be considered an amendment or modification), or (B) approverecommend, adopt or recommendapprove, or publicly propose to approverecommend, adopt or recommendapprove, an Acquisition Proposal for Target, or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Target Recommendation (any action described of the foregoing in this clause (A) or (B) being referred to as an C), a “Adverse Recommendation ChangeChange in the Target Recommendation”), (ivD) agree take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including approving any transaction under, or a third party becoming an “affiliated shareholder” under, Section 21.606 of the TBOC), or any restrictive provision of any applicable anti-takeover provision in Target’s articles of incorporation or bylaws, inapplicable to any transactions contemplated by an Acquisition Proposal, (E) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreementagreement or other contract or instrument constituting or relating to an Acquisition Proposal for Target (other than a confidentiality agreement of the type referred to in Section 8.4(b)), or other similar Contract providing forany contract or agreement in principle compelling Target to abandon, with respect toterminate or breach any of its obligations hereunder, or fail to consummate the Transactions (any of the foregoing agreements in connection withthis clause (E), a “Target Acquisition Contract”), (F) enter into any Acquisition Proposalconfidentiality or similar agreement with any third party which prohibits Target from providing or making available to Parent pursuant to Section 8.4(b) any of the information to be provided to such third party in the time periods provided in Section 8.4(b), or (vG) grant or permit any third party any waiver or release under under, or fail to enforce any standstill provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party with respect to any Personclass of securities of Target or any of its Subsidiaries or (H) resolve, propose or agree to do any of the foregoing. The Company agrees Without limiting the foregoing, it is agreed that any violations violation of the restrictions on Target set forth in this Section 6.03 the preceding sentence by any Representative of Target or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) section by the CompanyTarget.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alta Mesa Energy LLC), Agreement and Plan of Merger (Meridian Resource Corp)
General Prohibitions. Neither Except as otherwise expressly contemplated in this Section 6.03, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, publicly withdraw or publicly modify or qualify in any a manner adverse to Parent the Company Board RecommendationRecommendation (or, or (B) approveexcept in connection with a termination of this Agreement pursuant to Section 10.01(d)(i), adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal Proposal) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries or under the Company Rights Agreement, (v) take any action to exempt from Section 351.407 or Section 351.459 of Missouri Law any transaction other than the Merger or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal. It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ralcorp Holdings Inc /Mo), Agreement and Plan of Merger (Conagra Foods Inc /De/)
General Prohibitions. Neither From and after the date hereof until the earlier to occur of the Acceptance Time or the date of termination of this Agreement in accordance with Article 11, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or other representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into into, engage in or participate in any discussions or negotiations with, furnish any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to makequalify, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub, or propose publicly to qualify, withdraw or modify the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommend, or propose publicly propose to approveadopt, adopt endorse, approve or recommend, an any Acquisition Proposal, or resolve to take any such action, (C) publicly make any recommendation in connection with a tender offer or exchange offer (other than the Offer) other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board of Directors of the type contemplated by Rule 14d-9(f) under the 1934 Act; (D) other than with respect to a tender or exchange offer described in clause (C), following the date any Acquisition Proposal or announce that an any material modification thereto is first made public, fail to issue a press release reaffirming the Company Board Recommendation within ten Business Days after a request by Parent to do so (provided the Company shall not be required to issue more than one such press release in response to any Acquisition Proposal constitutes a Superior Proposal or any material modification thereto) or (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), or (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Subsidiary of the Company or any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tyson Foods Inc), Agreement and Plan of Merger (Tyson Foods Inc)
General Prohibitions. Neither Except as expressly permitted by Section 6.03(b), neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing providing non-public information) the submission of any Acquisition Proposalinquiries, proposals or any inquiry offers that constitute or the making of any proposal that could would reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into into, continue or otherwise participate in any discussions or negotiations withwith respect thereto, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toto any Third Party in connection therewith, or otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or encourage any effort by any Third Party that has madesuch inquiries, orproposals, to the Company’s Knowledge, is seeking to make, an Acquisition Proposaldiscussions or negotiations, (iii) (A) fail to make, or withdraw, change, qualify or modify (or publicly propose to withdraw, change, qualify or modify) in any a manner adverse to Parent Parent, the Company Board RecommendationRecommendation (or adopt, or (B) approve, adopt approve or recommend, or publicly propose to approveadopt, adopt approve or recommend, an a Company Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Company Recommendation Change”), (iv) agree enter into any agreement or understanding (including, without limitation, any definitive transaction document, letter of intent or similar agreement) relating to a Company Acquisition Proposal or enter into any agreement or agreement in principleprinciple requiring the Company to abandon, letter of intentterminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries, or (vi) resolve or propose to do any of the foregoing. It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company. The Company shall, and shall cause its Subsidiaries and its and their Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the date hereof with respect to any Company Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conmed Healthcare Management, Inc.), Agreement and Plan of Merger (Conmed Healthcare Management, Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (v) approve any transaction under, or any Person becoming an “interested stockholder” under, any Takeover Statutes or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . 57 It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 6.04 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 6.04 by the Company.
Appears in 2 contracts
Samples: Voting and Support Agreement (Transocean Ltd.), Voting and Support Agreement (Transocean Ltd.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall and the Company or any of and its Subsidiaries authorize or permit any of shall use reasonable best efforts to cause its or and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) respective Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, ; (ii) enter into or participate in any discussions (except solely to notify a Person that makes any inquiry or offer with respect to an Acquisition Proposal of the existence of the provisions of this Section 6.03 and to clarify the terms and conditions of any Acquisition Proposal) or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with any Third Party in connection with, or for the purpose of knowingly assist, participate in, facilitate encouraging or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to makeknowingly facilitating, an Acquisition Proposal, ; (iii) (A) fail to make, withdraw, modify withdraw or qualify or modify in any a manner adverse to Parent Parent, the Company Board Recommendation, or (B) fail to include the Company Board Recommendation in the Proxy Statement, (C) approve, adopt or recommendrecommend an Acquisition Proposal, (D) fail to (I) publicly and without qualification recommend against any Acquisition Proposal within ten (10) Business Days after such Acquisition Proposal is made public (or such fewer number of days as remains prior to the Company Stockholders’ Meeting so long as such Acquisition Proposal is made at least one (1) Business Day prior to the Company Stockholders’ Meeting), or (II) fail to reaffirm the Company Board Recommendation within ten (10) Business Days after any request by Parent to do so (or such fewer number of days as remains prior to the Company Stockholders’ Meeting so long as such request is made at least one (1) Business Day prior to the Company Stockholders’ Meeting), it being understood and agreed that Parent shall be entitled to request a reaffirmation of the Company Board Recommendation on a maximum of one (1) occasion in respect of any Acquisition Proposal, except that Parent shall be entitled to make an additional request upon any material change in the terms of such Acquisition Proposal or (E) publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal do any of the foregoing in clauses (A) through (D) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ; or (iv) agree to authorize or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument or agreement, with respect towhether written or oral, binding or in connection withnon-binding, any relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hewlett Packard Enterprise Co), Agreement and Plan of Merger (Juniper Networks Inc)
General Prohibitions. Neither The Company, its Subsidiaries and the persons specified on Section 6.04(a) of the Company nor any of Disclosure Schedule (such persons, the “Specified Persons”) shall not, and the Company and its Subsidiaries shall, nor shall the Company or any of its Subsidiaries not authorize or permit direct any of its or their other directors, officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, auditors, advisors or other representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate initiate, propose, seek or take any action to for the purpose of the making, submission or announcement of, or knowingly facilitate facilitate, assist, induce or encourage (including by way of furnishing non-public information) the making, submission of any Acquisition Proposalor announcement of, or any inquiry or the making of any proposal that could constitutes, or that would reasonably be expected to lead to, the submission of any to an Acquisition Proposal, (ii) enter into or into, engage in, participate in or maintain or continue any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books books, records or records other non-public information of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate facilitate, induce or encourage encourage, any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, concerning an Acquisition Proposal, (iii) (A) fail to make, qualify, withdraw, withhold, amend or modify or qualify in any a manner adverse to Parent or Merger Subsidiary, or propose publicly to qualify, withdraw, withhold, amend or modify, the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommend, or propose publicly propose to approveadopt, adopt endorse, approve or recommend, any Acquisition Proposal, (C) publicly make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a “stop, look and listen” communication by the Board of Directors (or a committee thereof) to the stockholders of the Company pursuant to Rule 14d-9(f) promulgated under the 1934 Act (or any substantially similar communication) (it being understood that the Board of Directors (or a committee thereof) may refrain from taking a position with respect to an Acquisition Proposal until the close of business on the tenth Business Day after the commencement of a tender or announce that an exchange offer in connection with such Acquisition Proposal constitutes without such action being considered a Superior violation of this Section 6.04), (D) subject to clause (C), following the date on which any Acquisition Proposal or material modification thereto is first made public, fail to issue a press release reaffirming the Company Board Recommendation within five Business Days after a written request by Parent to do so (it being understood that the Company will not be obligated to issue such a press release on more than five occasions) or (E) fail to include the Company Board Recommendation in the Company Proxy Statement that is mailed to the Company’s stockholders (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into approve any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreementtransaction under, or other similar Contract providing forany Person becoming an “interested stockholder” under, with respect toSection 203 of the Delaware Law, or in connection with, (v) submit any Acquisition ProposalProposal or any matter related thereto to the vote of the stockholders of the Company, or (vvi) grant authorize or commit to do any waiver or release under of the foregoing. It is agreed that (a) any standstill or similar agreement to which action taken by a Representative of the Company (other than a Specified Person) that is authorized or directed by the Company or any Specified Person or that a party Specified Person is made aware of and does not take action to any Person. The Company agrees that any violations of cease and that, if taken by the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be Company, would constitute a breach of this Agreement (including Section 6.04, will be deemed to constitute a breach by the Company of this Section 6.036.04; and (b) any action taken by a Specified Person and that, if taken by the Company, would constitute a breach of this Section 6.04, will be deemed to constitute a breach by the Company of this Section 6.04. Notwithstanding anything to the contrary in this Section 6.04, neither (1) the determination in itself by the Board of Directors (or any committee thereof) that an Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal nor (2) the delivery in itself by the Company to Parent of any notice contemplated by Section 6.04(c) will constitute an Adverse Recommendation Change or violate this Section 6.04(a).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Illumina Inc), Agreement and Plan of Merger (Pacific Biosciences of California, Inc.)
General Prohibitions. Neither From and after the date of this Agreement until the earlier of the Exchange Effective Time and the termination of this Agreement in accordance with its terms, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate initiate, or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition ProposalProposal by a Third Party or otherwise initiate any process that is intended to, or any inquiry or is reasonably likely to lead to the making of an Acquisition Proposal by any proposal that could reasonably be expected to lead to, the submission of any Acquisition ProposalThird Party, (ii) enter into or participate in any discussions discussion or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford any access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage in any manner any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal made by a Third Party or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree grant to any Third Party any waiver under, or any release from, any standstill or similar agreement concerning or relating to, any Defensive Measure or redeem, modify, repeal or otherwise diminish any Defensive Measure other than for the benefit of Parent and its Affiliates or permit to expire, fail to renew or otherwise fail to maintain in effect any Defensive Measure, (v) exempt any transaction (except the transactions contemplated by this Agreement) or Person (other then Parent or its Affiliates) from any Takeover Statute, (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition purchase agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, Proposal or (vvii) grant agree or commit to take any waiver or release under any standstill or similar agreement to which of the Company actions described in this Section 8.03(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Transaction Agreement (Sovereign Bancorp Inc), Shareholder Agreement (Banco Santander, S.A.)
General Prohibitions. Neither the Company Parent nor any of its Subsidiaries shall, nor shall the Company Parent or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Parent Acquisition Proposal, (ii) enter into or participate in any discussions (other than to state that Parent is not permitted to have discussions) or negotiations withwith any Third Party that is seeking to make, or has made, a Parent Acquisition Proposal, (iii) furnish any non-public information relating to the Company Parent or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Parent or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Parent Acquisition Proposal, (iiiiv) make a Parent Adverse Recommendation Change, (Av) fail to makeenforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Parent or any of its Subsidiaries unless the Board of Directors of Parent determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law; provided that Parent shall not enforce and hereby waives any provision of any such agreement that would prohibit a Third Party from communicating confidentially a Parent Acquisition Proposal to the Parent’s Board of Directors, withdraw, modify or qualify in (vi) approve any manner adverse to Parent the Company Board Recommendationtransaction under, or (B) approveany Person becoming an “interested stockholder” under, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) Section 203 of Delaware Law or (Bvii) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument relating to a Parent Acquisition Proposal (other than a confidentiality agreement to the extent contemplated by Section 7.04(b)); provided that (so long as Parent and its Representatives have otherwise complied in all material respects with this Section 7.04) none of the foregoing shall prohibit Parent and its Representatives from, at any time prior to the Parent Stockholder Approval, participating in discussions with respect any Persons or group of Persons who has made a Parent Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Parent Acquisition Proposal is, or could reasonably be expected to lead to, or in connection with, any Acquisition a Parent Superior Proposal, or (v) grant and any waiver or release under any standstill or similar agreement to which the Company such actions shall not be a breach of this Section 7.04(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on Parent set forth in this Section 6.03 7.04 by any Representative of Parent or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 7.04 by the CompanyParent.
Appears in 2 contracts
Samples: Agreement and Plan of Mergers (Time Warner Cable Inc.), Agreement and Plan of Mergers (Charter Communications, Inc. /Mo/)
General Prohibitions. Neither Except as expressly permitted pursuant to Section 7.6(b), from and after the Company nor any date hereof and prior to the earlier of the termination of this Agreement in accordance with Section 11.1 and the Effective Time, Parent shall not (and Parent shall (i) cause its Subsidiaries shall, nor shall the Company or any of its Subsidiaries not to and (ii) not authorize or permit and shall instruct and use its reasonable best efforts to cause its and any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) its Subsidiaries’ Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of or assist any Acquisition Proposal, or any inquiry inquiries or the making of any proposal or offer that could constitutes or may reasonably be expected to lead to, to the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any information relating to the Company Parent or any of its Subsidiaries or afford access to the business, properties, assets, personnel, books or records of the Company Parent or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that has madewith respect to inquiries regarding, or, to or the Company’s Knowledge, is seeking to makemaking of, an Acquisition Proposal, (iii) (A) fail to make, qualify, withdraw, or modify or qualify amend in any a manner adverse to the Sellers the Special Committee Recommendation or the Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommendrecommend an Acquisition Proposal), or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal do any of the foregoing (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to approve, endorse, recommend or enter into (or agree or publicly propose to do any of the foregoing) any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, instrument relating to an Acquisition Proposal (other than a confidentiality agreement with respect to, or a Third Party to whom Parent is permitted to provide information in connection with, any accordance with Section 7.6(b)(i)) (a “Parent Acquisition Proposal, Agreement”) or (v) grant any waiver waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or similar agreement provision contained in Parent’s articles of incorporation, bylaws or other governing documents. Parent shall (and Parent shall (i) cause its Subsidiaries to which the Company is a party and (ii) instruct and use reasonable best efforts to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by cause its and any of its Subsidiaries’ Representatives shall be deemed to) cease immediately and cause to be a breach terminated any and all existing activities, solicitations, encouragements, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the date hereof with respect to any Acquisition Proposal or efforts to obtain an Acquisition Proposal, and shall also request such Third Party to promptly return or destroy all confidential information concerning Parent and its Subsidiaries prior to the date hereof. Parent hereby confirms that it is not currently in negotiations or discussions with any Third Party which would reasonably be expected to lead to the making of this Agreement (including this Section 6.03) by the Companyan Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Oaktree Capital Management Lp), Shareholders Agreement (Star Bulk Carriers Corp.)
General Prohibitions. Neither (i) From the date of this Agreement until the Acceptance Time, except as expressly permitted by this Section 7.03 and for actions taken or omitted by, or at the specific direction of, any Designated Individual, neither the Company nor any of its Subsidiaries shall, nor shall and the Company or any of and its Subsidiaries authorize or permit shall cause its and their respective officers and directors (other than any of Designated Individual) and shall use their reasonable best efforts to cause its or and their officers, directors, respective employees, investment bankers, attorneys, accountants, consultants or other agentsagents or advisors (each of the foregoing, advisors or representatives (a “RepresentativesRepresentative”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly assist, facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate in or encourage any effort by any Third Party or Table of Contents Representative thereof that has made, or, to the Company’s Knowledge, is seeking to make, make or would reasonably be expected to make an Acquisition ProposalProposal (other than to refer them to the terms of this Agreement that prohibit such discussions), (iii) (A) fail to make, withdraw, include the Company Board Recommendation or the Special Committee Recommendation in the Schedule 14d-9 or withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub the Company Board Recommendation, Recommendation or the Special Committee Recommendation or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes (C) make any public proposal to withdraw or modify in a Superior Proposal manner adverse to Parent or Merger Sub the Company Board Recommendation or Special Committee Recommendation (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree approve any transaction under, or take any action to exempt any Person (other than Parent and its Subsidiaries) from the restrictions of, Section 203 of Delaware Law or any provision contained in the Company’s Organizational Documents having similar effect or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, agreement or in connection with, any instrument relating to an Acquisition Proposal, or Proposal (v) grant any waiver or release under any standstill or similar agreement other than an Acceptable Confidentiality Agreement pursuant to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company7.03(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sonic Financial Corp), Agreement and Plan of Merger (Speedway Motorsports Inc)
General Prohibitions. Neither Except as expressly permitted by Section 7.4(b), neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage the making by any Person (including by way of furnishing non-public informationother than Parent and its Affiliates) the submission of any Acquisition Proposalinquiry, proposal or any inquiry offer that constitutes or the making of any proposal that could would reasonably be expected to lead to, the submission of to any Acquisition Proposal, (ii) enter into into, continue, or otherwise participate in any discussions or negotiations with, furnish with any information relating Person (other than Parent and its Affiliates) in furtherance of an inquiry or to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, obtain an Acquisition Proposal, or (iii) (A) fail enter into any agreement, understanding or arrangement with respect to make, withdraw, modify or qualify in any manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement or agreement in principleprinciple that would reasonably be expect to require the Company to abandon, letter of intentterminate or fail to consummate the Transactions or breach its obligations hereunder, memorandum of understanding(iv) subject to Section 7.4(e), term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company is a party or any of its Subsidiaries, or (v) resolve or propose to do any Personof the foregoing. The Company agrees shall take, and shall cause its Subsidiaries to take, all actions reasonably necessary to cause its Representatives to immediately cease any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the date hereof with respect to any Acquisition Proposal. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal, if any, to return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company and its Subsidiaries. Except as expressly permitted by Section 7.4(d), neither the Company Board nor any committee thereof shall (A) fail to make, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify) in a manner adverse to Parent the Company Board Recommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Acquisition Proposal, (C) (x) fail to publicly recommend against any Acquisition Proposal or (y) fail to publicly reaffirm the Company Board Recommendation, in each case of (x) and (y) within three (3) Business Days after Parent so requests in writing, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within three (3) Business Days after the commencement of such Acquisition Proposal, or (E) fail to include the Company Board Recommendation in favor of approval and adoption of this Agreement and the Merger in the Proxy Statement (any action described in the foregoing clauses (A) through (E), an “Adverse Company Recommendation Change”). It is agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 7.4(a) by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.037.4(a) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Engility Holdings, Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize authorize, allow or permit any of its or their officers, directors, Representatives (other than non-officer employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives ) to (“Representatives”) toand the Company shall use its reasonable best efforts to cause its and its Subsidiaries’ non-officer employees to not), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into into, engage in or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or books, records of work papers and other documents related to the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, in each case with respect to an Acquisition Proposal, (iii) (A) fail to makequalify, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub, or propose publicly to qualify, withdraw or modify in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommend, or propose publicly propose to approveadopt, adopt endorse, approve or recommend, an any Acquisition Proposal, or resolve to take any such action, (C) publicly make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board of Directors (or any duly authorized committee thereof) of the type contemplated by Rule 14d-9(f) under the 1934 Act, (D) other than with respect to a tender or exchange offer in a manner described in clause (C), following the date any Acquisition Proposal or announce that an Acquisition Proposal constitutes any material modification thereto is first publicly announced, fail to issue a Superior Proposal press release reaffirming the Company Board Recommendation within ten Business Days after a request by Parent to do so or (E) fail to include the Company Board Recommendation in the Proxy Statement when disseminated to the Company’s stockholders (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, letter of intent, memorandum indication of understandinginterest, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Campbell Soup Co), Agreement and Plan of Merger (Sovos Brands, Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall and the Company or any of and its Subsidiaries authorize or permit any of shall cause its or and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, Proposal or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, in respect thereto; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by with any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, in connection with an Acquisition Proposal, Proposal or inquiry in respect thereto; (iii) (A) fail to make, withdraw, qualify or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, or (B) fail to include the Company Board Recommendation in the Proxy Statement, (C) approve, adopt or recommendrecommend an Acquisition Proposal, (D) fail to publicly and without qualification recommend against any Acquisition Proposal within ten (10) Business Days after such Acquisition Proposal is made public (or such fewer number of days as remains prior to the Company Stockholders’ Meeting, so long as such Acquisition Proposal is made at least one (1) Business Day prior to the Company Stockholders’ Meeting) or, after an Acquisition Proposal is made public, fail to reaffirm the Company Board Recommendation within ten (10) Business Days after any request by Parent to do so (or such fewer number of days as remains prior to the Company Stockholders’ Meeting, so long as such Acquisition Proposal is made at least one (1) Business Day prior to the Company Stockholders’ Meeting), or (E) publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal do any of the foregoing (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ; or (iv) agree to authorize or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument or agreement, with respect towhether written or oral, binding or in connection withnon-binding, any relating to an Acquisition Proposal, or Proposal (v) grant any waiver or release under any standstill or similar other than a confidentiality agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this contemplated by Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company6.03(b)).
Appears in 1 contract
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “"Adverse Recommendation Change”"), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (v) approve any transaction under, or any Person becoming an "interested stockholder" under, any Takeover Statutes or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 6.04 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 6.04 by the Company.
Appears in 1 contract
General Prohibitions. Neither The Company and its Subsidiaries shall not, and the Company nor any of and its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of instruct its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the non-public business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal Proposal) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Navistar International Corp)
General Prohibitions. Neither From and after the date hereof until the earlier to occur of the Acceptance Time or the date of termination of this Agreement in accordance with Article 11, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or other representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into into, engage in or participate in any discussions or negotiations with, furnish any nonpublic information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to makequalify, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub, or propose publicly to qualify, withdraw or modify the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommend, or propose publicly propose to approveadopt, adopt endorse, approve or recommend, an any Acquisition Proposal, or resolve to take any such action, (C) publicly make any recommendation in connection with a tender offer or exchange offer (other than the Offer) other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board of Directors of the type contemplated by Rule 14d-9(f) under the 1934 Act; (D) other than with respect to a tender or exchange offer described in clause (C), following the date any Acquisition Proposal or announce that an any material modification thereto is first made public, fail to issue a press release reaffirming the Company Board Recommendation within ten Business Days after a request by Parent to do so (provided the Company shall not be required to issue more than one such press release in response to any Acquisition Proposal constitutes a Superior Proposal or any material modification thereto) or (E) fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), or (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Subsidiary of the Company or any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AdvancePierre Foods Holdings, Inc.)
General Prohibitions. Neither Prior to the Acceptance Time, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, : (i) solicit, initiate or take any action to knowingly assist, facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate in or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, make or would be reasonably expected to make an Acquisition Proposal, ; (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Subsidiary the Company Board Recommendation (or recommend an Acquisition Proposal or make any public statement (or statement to any of its stockholders (other than, for the avoidance of doubt, to a director of the Company in his capacity as such)) inconsistent with the Company Board Recommendation (including publicly proposing to withdraw or modify the Company Board Recommendation, or (B)) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ; (iv) agree fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law; or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 Section 7.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.037.03(a) by the Company.
Appears in 1 contract
General Prohibitions. Neither the The Company nor any of shall not, shall cause its Subsidiaries shalland the Company’s officers and directors not to, nor and shall the Company or any of instruct its Subsidiaries authorize or permit any of and its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or Subsidiaries’ respective other agents, advisors or representatives (“Representatives”) Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of books, records, work papers and other documents related to the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition ProposalProposal in connection therewith, (iii) (A) fail to makequalify, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommendrecommend any Acquisition Proposal, or publicly propose resolve to approvetake any such action, adopt or recommend, an (C) following the date any Acquisition Proposal or announce that an any material modification thereto is first publicly announced, other than in the case of a tender offer or exchange offer subject to Regulation D promulgated under the 1934 Act, fail to issue a press release reaffirming the Company Board Recommendation within the earlier of (x) ten (10) Business Days after a request by Parent to do so and (y) prior to the date of the Company Meeting (as such date may be postponed or adjourned in accordance with the terms hereof), (D) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Acquisition Proposal constitutes that is a Superior Proposal tender offer or exchange offer subject to Regulation D promulgated under the 1934 Act within the earlier of (x) ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the 1000 Xxx) of such tender offer or exchange offer and (y) prior to the date of the Company Meeting (as such date may be postponed or adjourned in accordance with the terms hereof) or (E) fail to include the Company Board Recommendation in the Proxy Statement when disseminated to the Company stockholders in accordance with Section 8.03 (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ) or (iv) agree to or enter into any agreement in principle, letter of intent, memorandum indication of understandinginterest, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
General Prohibitions. Neither Subject to Section 4.2(b), the Company nor any of its Subsidiaries shallSeller shall not, nor shall the Company or any of its Subsidiaries it authorize or permit any of its Subsidiaries or any of its or their officers, respective directors, officers or employees, or any investment bankers, financial advisors, attorneys, accountants, consultants accountants or other agentsadvisors, advisors agents or representatives retained by the Seller or any of its Subsidiaries (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate initiate, knowingly encourage or take knowingly facilitate, any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry inquiries or the making of any proposal that could constitutes or is reasonably be expected likely to lead to, the submission of any to an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, furnish to any third party any information (whether orally or in writing) in connection with, furnish or in furtherance, of any information relating to the Company or any of its Subsidiaries Acquisition Proposal, or afford access to the business, properties, assets, books or records of the Company Seller or any of its Subsidiaries toSubsidiaries, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party third party that has made, or, to the Company’s Knowledge, is seeking to make or has informed the Seller of any intention to make, or has publicly announced an intention to make, an Acquisition Proposal, (iii) take any action not already taken to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (A) fail to make, withdraw, modify or qualify in including approving any manner adverse to Parent the Company Board Recommendationtransaction under, or a third party becoming an “interested shareholder” under, Article 14 (BAffiliated Transactions) approve, adopt or recommendof the VSCA), or publicly propose any restrictive provision of any applicable anti-takeover provision in the Seller’s articles of incorporation or bylaws, inapplicable to approve, adopt or recommend, any transactions contemplated by an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”)Proposal, (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, asset purchase agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, instrument constituting or in connection with, any relating to an Acquisition Proposal, or Proposal (v) grant any waiver or release under any standstill or similar other than a confidentiality agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth type referred to in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.034.2(b)) by the Company.or
Appears in 1 contract
Samples: Asset Purchase Agreement
General Prohibitions. Neither From and after the date hereof, until the earlier to occur of the Acceptance Time and termination of this Agreement in accordance with Article 11, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission or encourage any inquiries or expressions of any Acquisition Proposalinterest with respect to, or any inquiry or the making of or submission of, any proposal that could constitutes, or may reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into into, engage in or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or any of their respective assets or afford access to the business, properties, assets, books or records of books, records, work papers and other documents related to the Company or any of its Subsidiaries toin furtherance of or for the purpose or expectation of obtaining, or otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition ProposalProposal (other than to state the terms of this Agreement prohibit such discussion), (iii) (A) grant any waiver or release under (or fail to makeuse reasonable best efforts to enforce) any standstill or similar agreement with respect to any class of Equity Securities of the Company, withdraw(B) qualify, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub, or propose publicly to qualify, withdraw or modify in a manner adverse to Parent or Merger Sub the Company Board Recommendation, or (BC) adopt, endorse, approve, adopt accept or recommend, or propose publicly propose to approveadopt, adopt endorse, approve or recommend, an any Acquisition Proposal, or resolve to take any such action, (D) publicly make any recommendation in connection with a tender offer or exchange offer (other than the Offer) other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board of Directors of the type contemplated by Rule 14d-9(f) under the 1934 Act; (E) following the date any Acquisition Proposal or announce that an Acquisition Proposal constitutes any material modification thereto is first publicly announced, fail to issue a Superior Proposal press release reaffirming the Company Board Recommendation within seven (7) Business Days after a request by Parent to do so or (F) fail to include the Company Board Recommendation in the Schedule 14D-9 when disseminated to the Company’s stockholders (any action described of the foregoing in this clause (iii), other than clause (A) or (B) being referred to as ), an “Adverse Recommendation Change”), or (iv) agree to or enter into any agreement in principle, memorandum of understanding, letter of intent, memorandum indication of understandinginterest, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, option agreement or other similar Contract providing for, with respect to, (x) relating or in connection with, that would be reasonably be expected to lead to any Acquisition Proposal, Proposal or (vy) grant requiring it to abandon, terminate or fail to consummate the Merger or any waiver or release under any standstill or similar agreement to which of the Company Transactions. It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 7.03 by any Subsidiary of the Company or any Representative of the Company or any of its Representatives Subsidiaries, in each case, acting at the direction of the Company, shall be deemed to be a breach of this Agreement (including this Section 6.03) 7.03 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Goodrich Petroleum Corp)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, fail to include the Company Board Recommendation in the Proxy Statement, recommend an Acquisition Proposal or (B) approvefail to recommend against any Acquisition Proposal within five Business Days after it is made public, adopt or recommendmake any public statement that is inconsistent with the Company Board Recommendation, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal do any of the foregoing (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, (v) approve any transaction under, or any Person becoming an “interested shareholder” under, ORS 60.825 to 0.845 or cause the Oregon Control Share Act to become applicable to the Merger or the transactions contemplated by this Agreement or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cascade Microtech Inc)
General Prohibitions. Neither After the date hereof and prior to the earlier of the Acceptance Time and the termination of this Agreement in accordance with Article 11, the Company nor any of and its Subsidiaries shall, nor shall not (and the Company shall cause its or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Subsidiaries’ Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that has madewith respect to inquiries regarding, or, to or the Company’s Knowledge, is seeking to makemaking of, an Acquisition Proposal, (iiiiii)(A) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent Parent, the Company Board Recommendation, or (B) approve, adopt or recommendrecommend any Acquisition Proposal, (C) make any recommendation in connection with a tender offer or publicly propose to approveexchange offer other than a recommendation against such offer or (D) exempt any person from the restrictions contained in any state takeover or similar Laws, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal including Section 203 of Delaware Law (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal (other than a confidentiality agreement with a Third Party to whom the Company is a party permitted to any Person. The Company agrees that any violations of the restrictions set forth provide information in this accordance with Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company7.04(b)(i)).
Appears in 1 contract
Samples: Agreement and Plan of Merger (MediaMind Technologies Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit direct any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, representatives, or advisors or representatives (“Representatives”) to, directly or indirectly, indirectly (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, Proposal or any inquiry inquiry, proposal, request for non-public information or the making of any proposal offer that could would reasonably be expected to lead to, the submission of any to an Acquisition ProposalProposal (an “Acquisition Inquiry”), (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, or would reasonably be expected to the Company’s Knowledge, is seeking to make, make an Acquisition ProposalProposal or Acquisition Inquiry, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any public statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree grant any waiver or release under any standstill or similar Contract with respect to any class of equity securities of the Company or any of its Subsidiaries (provided that the Company shall not be required to enforce, and shall be permitted to waive, any provision of any such Contract that prohibits or purports to prohibit a confidential proposal being made to the Board of Directors), (v) approve any transaction under, or any Person (other than Parent or Merger Subsidiary) becoming an “interested shareholder” under, Section 302A.673 of the MBCA or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar instrument or Contract providing for, with respect to, relating to an Acquisition Proposal or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company Inquiry. It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 6.04 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hutchinson Technology Inc)
General Prohibitions. Neither After the date hereof and prior to the earlier of the Acceptance Time and the termination of this Agreement in accordance with Article 11, the Company nor any of and its Subsidiaries shall, nor shall not (and the Company shall cause its or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Subsidiaries’ Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that has madewith respect to inquiries regarding, or, to or the Company’s Knowledge, is seeking to makemaking of, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent Parent, the Company Board Recommendation, or (B) approve, adopt or recommendrecommend any Acquisition Proposal, (C) make any recommendation in connection with a tender offer or publicly propose to approveexchange offer other than a recommendation against such offer or (D) exempt any person from the restrictions contained in any state takeover or similar Laws, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal including Section 203 of Delaware Law (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal (other than a confidentiality agreement with a Third Party to whom the Company is a party permitted to any Person. The Company agrees that any violations of the restrictions set forth provide information in this accordance with Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company7.04(b)(i)).
Appears in 1 contract
General Prohibitions. Neither the The Company nor any shall not, and shall cause each of its Subsidiaries shall, nor shall the Company or any of Affiliates and its Subsidiaries authorize or permit any of its or and their respective officers, directors, employees, financial advisors, investment bankers, attorneys, accountants, consultants or other agentsagents or advisors (collectively, advisors or representatives (“Representatives”) not to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, to or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by with any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, . Neither the Board of Directors nor any committee thereof shall (iii) (Ai) fail to make, withdraw, withdraw or modify or qualify (including in any the Schedule 14D-9) in a manner adverse to Parent the Company Board Recommendation, (ii) approve or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”)Proposal, (iviii) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (viv) publicly propose or announce an intention to take any of the foregoing actions (any of the foregoing in clauses (i) through (iv), an “Adverse Recommendation Change”). The Company shall not grant any waiver or release under any standstill standstill, confidentiality or similar provision of any agreement to which the Company is a party, shall enforce to the fullest extent permitted under Applicable Law the standstill provisions of any agreement to which the Company is a party and shall immediately take steps within its power necessary to terminate any waiver that may have been heretofore granted to any PersonPerson other than Parent and its Affiliates under any such provisions. The Company agrees that any violations Any violation of the restrictions on the Company set forth in this Section 6.03 7.03 by any Affiliate or Representative of its Representatives the Company shall be deemed to be a breach of this Agreement (including this Section 6.03) 7.03 by the Company.
Appears in 1 contract
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that is seeking (to the knowledge of the Company) to make, or has made, or, to the Company’s Knowledge, is seeking to make, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any public statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by or any of its Representatives shall be deemed Subsidiaries, (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (vi) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to be a breach of this Agreement (including this Section 6.03) by the Companyan Acquisition Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Memory Pharmaceuticals Corp)
General Prohibitions. Neither Except as expressly permitted pursuant to Section 6.4(b), from and after the date hereof and prior to the earlier of the termination of this Agreement in accordance with Section 10.1 and the Effective Time, the Company nor shall not (and the Company shall (i) cause its Subsidiaries not to and (ii) not authorize or permit and shall instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Subsidiaries’ Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate facilitate, encourage or encourage (including by way of furnishing non-public information) the submission of assist any Acquisition Proposal, or any inquiry inquiries or the making of any proposal or offer that could constitutes or would reasonably be expected to lead to, to the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that has madewith respect to inquiries regarding, or, to or the Company’s Knowledge, is seeking to makemaking of, an Acquisition Proposal, (iii) (A) fail to makepublicly make when required under this Agreement, qualify, withdraw, or modify or qualify amend in any a manner adverse to Parent Parent, the Transaction Committee Recommendation or the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommendrecommend an Acquisition Proposal), or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal do any of the foregoing (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to approve, endorse, recommend or enter into (or agree or publicly propose to do any of the foregoing) any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, instrument relating to an Acquisition Proposal (other than a confidentiality agreement with respect to, or a Third Party to whom the Company is permitted to provide information in connection with, any accordance with Section 6.4(b)(i)) (a “Company Acquisition Proposal, Agreement”) or (v) grant any waiver waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or similar agreement to which provision contained in the Company is a party to any PersonCharter Documents. The Company agrees that any violations of shall (and the restrictions set forth in this Section 6.03 by Company shall (i) cause its Subsidiaries to and (ii) instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries’ Representatives shall be deemed to) cease immediately and cause to be a breach of this Agreement (including this Section 6.03) by terminated any and all existing activities, solicitations, encouragements, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the Companydate hereof with respect to any Acquisition Proposal or efforts to obtain an Acquisition Proposal, and shall also request such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries prior to the date hereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Scorpio Tankers Inc.)
General Prohibitions. Neither Subject to Section 6.4(b), the Company nor any of its Subsidiaries shallshall not, nor shall the Company or any of its Subsidiaries it authorize or permit any of its Subsidiaries or any of its or their officers, respective directors, officers or employees, investment bankers, financial advisors, attorneys, accountants, consultants accountants or other agentsadvisors, advisors agents or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposalinitiate, or knowingly encourage or facilitate, any inquiry inquiries or the making of any proposal that could constitutes or is reasonably be expected likely to lead to, the submission of any Acquisition to a Takeover Proposal, (ii) other than solely informing Persons of the provisions contained in this Section 6.4, enter into or participate in any discussions or negotiations regarding any Takeover Proposal, furnish to any Third Party any information (whether orally or in writing) in connection with, furnish or in furtherance, of any information relating to the Company or any of its Subsidiaries Takeover Proposal, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toSubsidiaries, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party that has made, or, to the Company’s Knowledge, is seeking to make or has informed the Company of any intention to make, or has publicly announced an Acquisition intention to make, a Takeover Proposal, (iii) (A) fail to make, withdraw, withdraw or modify in a manner adverse to Parent or qualify publicly propose to withdraw or modify in any a manner adverse to Parent the Company Board RecommendationOffer Recommendation or Merger Recommendation (it being understood that, subject to and without limitation of Section 6.4(g), taking a neutral position or (B) approveno position with respect to any Takeover Proposal shall be considered an adverse modification), recommend, adopt or recommendapprove, or publicly propose to approverecommend, adopt or recommendapprove, an Acquisition Proposal a Takeover Proposal, or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Offer Recommendation or Merger Recommendation (any action described of the foregoing in this clause (A) or (B) being referred to as an iii), a “Company Adverse Recommendation Change”), (iv) agree take any action not already taken to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including approving any transaction under, or a Third Party becoming an “interested shareholder” under, Article 14 (Affiliated Transactions) of the VSCA), or any restrictive provision of any applicable anti-takeover provision in the Company’s articles of incorporation or bylaws, inapplicable to any transactions contemplated by a Takeover Proposal, (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, instrument constituting or relating to a Takeover Proposal (other than a confidentiality agreement of the type referred to in connection with, any Acquisition Proposal, Section 6.4(b)) or (vvi) grant any Third Party any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries. Without limiting the foregoing, it is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 the preceding sentence by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement of Merger (Shire PLC)
General Prohibitions. Neither Except as expressly permitted by Section 6.04(b), neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing providing non-public information) the submission of any Acquisition Proposalinquiries, proposals or any inquiry offers that constitute or the making of any proposal that could would reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into into, continue, or otherwise participate in any discussions or negotiations withwith respect thereto, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toto any Third Party in connection therewith, or otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or encourage any effort by any Third Party that has madesuch inquiries, orproposals, to the Company’s Knowledge, is seeking to make, an Acquisition Proposaldiscussions or negotiations, (iii) enter into any agreement or understanding (Aincluding, without limitation, any definitive transaction document, letter of intent or similar agreement) fail relating to make, withdraw, modify or qualify in any manner adverse to Parent the a Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement or agreement in principleprinciple requiring the Company to abandon, letter of intentterminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (viv) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company is a party or any of its Subsidiaries, or (v) resolve or propose to do any Personof the foregoing. The Company agrees shall, and shall cause its Subsidiaries and its and their Representatives to, cease immediately and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the date hereof with respect to any Company Acquisition Proposal. Except as expressly permitted by Section 6.04(b), neither the Board of Directors of the Company nor any committee thereof shall (A) fail to make, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify) in a manner adverse to Parent the Company Board Recommendation, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) a Company Acquisition Proposal, (C) (x) fail to publicly recommend against any Company Acquisition Proposal or (y) fail to publicly reaffirm the Company Recommendation, in each case of (x) and (y) within five (5) Business Days after Parent so requests in writing, (D) fail to recommend against any Company Acquisition Proposal subject to Regulation 14D under the 1934 Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten Business Days after the commencement of such Company Acquisition Proposal, or (E) fail to include the recommendation of the Board of Directors of the Company in favor of approval and adoption of this Agreement and the Merger in the Proxy Statement (any action described in the foregoing clauses (A) through (E), an “Adverse Company Recommendation Change”); provided that, for the avoidance of doubt, none of (1) the determination by the Board of Directors of the Company that a Company Acquisition Proposal constitutes a Superior Proposal, (2) the disclosure by the Company of such determination or (3) the delivery by the Company of the notice required by the last sentence of this Section 6.04 shall constitute an Adverse Company Recommendation Change). It is agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 6.04(a) by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.036.04(a) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Conmed Healthcare Management, Inc.)
General Prohibitions. Neither Except as expressly permitted by this Section 6.03, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition ProposalProposal (provided that the Company and its Representatives may ascertain facts from the Person making such Acquisition Proposal (and such Person’s Subsidiaries and its and their respective Representatives) for the sole purpose of the Board of Directors of the Company informing itself about such Acquisition Proposal and the Person that made it (and such Person’s Subsidiaries and its and their respective Representatives)), (iii) (A) fail to makewithhold, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal Proposal) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ) or (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument to effect an Acquisition Proposal with the Person making such Acquisition Proposal (or any of its Subsidiaries) (other than a confidentiality agreement entered into in compliance with the provisions of this Section 6.03 and, with respect to, or in connection withafter such execution of a confidentiality agreement, any Acquisition Proposalcustomary engagement, or (v) grant any waiver or release under any standstill joint defense, clean team or similar agreement to which the Company agreements) (an “Alternative Acquisition Agreement”). It is a party to any Person. The Company agrees agreed that any violations breach of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cytec Industries Inc/De/)
General Prohibitions. Neither From and after the Go -Shop Period End Date until the earlier to occur of the time Stockholder Approval and, unless the Company has waived the condition set forth in Section 9.03(d), the Majority of the Minority Approval are obtained or the date of termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into into, engage in or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of books, records, work papers and other documents related to the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by any Third Party that has made, orthat, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition ProposalProposal (other than to state the terms of this Agreement prohibit such discussion), (iii) (A) fail to makequalify, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub, or propose publicly to qualify, withdraw or modify in a manner adverse to Parent or Merger Sub the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommend, or propose 44 publicly propose to approveadopt, adopt endorse, approve or recommend, an any Acquisition Proposal, or resolve to take any such action, (C) publicly make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board of Directors of the type contemplated by Rule 14d-9(f) under the 1934 Act; (D) other than with respect to a tender or exchange offer described in clause (C), following the date any Acquisition Proposal or announce that an Acquisition Proposal constitutes any material modification thereto is first publicly announced, fail to issue a Superior Proposal press release reaffirming the Company Board Recommendation within ten Business Days after a request by Parent to do so or (E) fail to include the Company Board Recommendation in the Proxy Statement when disseminated to the Company Stockholders (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), or (iv) agree to or enter into any agreement in principle, letter of intent, memorandum indication of understandinginterest, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Subsidiary of the Company or any Representative of the Company or any of its Subsidiaries, in the case of Representatives, (x) acting at the direction or (y) to the Knowledge of the Company, provided that the Company did not direct such Representatives to cease violating such restrictions reasonably promptly after acquiring such Knowledge, shall be deemed to be a breach of this Agreement (including this Section 6.036.03(b) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (FTS International, Inc.)
General Prohibitions. Neither the Company Board, the Company nor any of its Subsidiaries shall, nor shall the Company Board, the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate initiate, propose, encourage (including by providing information) or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, Proposal or any inquiry proposal or the making of any proposal offer that could reasonably be expected to lead to, the submission of any to an Acquisition Proposal, (ii) enter into into, engage in or otherwise participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by with any Third Party that has made, or, to the Knowledge of the Company’s Knowledge, is seeking to makeconsidering making, an Acquisition Proposal, (iii) (A) fail to make, withdraw, modify or qualify in any manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, make an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, instrument relating to an Acquisition Proposal or in connection with, any that could reasonably be expected to lead to an Acquisition Proposal, or that contradicts this Agreement or requires the Company to abandon this Agreement, (v) grant fail to take all action necessary to enforce, or waive or amend, any waiver or release under any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party to any Person. The Company agrees that any violations or otherwise bound, or (vi) resolve by action of the restrictions set forth in this Section 6.03 by Company Board, publicly propose or agree to do any of its Representatives shall be deemed to be a breach the foregoing. For the purposes of this Agreement Agreement, an “Adverse Recommendation Change” shall occur if the Company Board, the Company or any its Subsidiaries or their respective Representatives directly, or indirectly, (including this A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend an Acquisition Proposal or subject to the last paragraph of Section 6.035.2(b), fail to reject an Acquisition Proposal, (C) by fail to publicly reaffirm the CompanyCompany Recommendation within five (5) Business Days after Parent so requests in writing, or (D) fail to include the Company Recommendation in the Proxy Statement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (EF Johnson Technologies, Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall and the Company or any of and its Subsidiaries authorize or permit any of shall cause its or and their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) respective Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposalof, or any inquiry or the making of any proposal that could would reasonably be expected to lead to, to the submission of of, any Acquisition Proposal, ; (ii) enter into or participate in any discussions (except solely to notify a Person that makes any offer, proposal, inquiry or indication of interest with respect to an Acquisition Proposal of the existence of the relevant restrictions of this Section 6.03) or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with any Third Party in connection with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party in a manner that has made, or, would reasonably be expected to the Company’s Knowledge, is seeking to makelead to, an Acquisition Proposal, ; (iii) (A) fail to make, withdraw, qualify or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, or (B) fail to include the Company Board Recommendation in the Proxy Statement, (C) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal, (D) fail to (1) publicly and without qualification recommend against any Acquisition Proposal within five (5) Business Days after such Acquisition Proposal is made public (or announce such fewer number of days as remains prior to the Company Stockholders’ Meeting so long as such Acquisition Proposal is made at least one (1) Business Day prior to the Company Stockholders’ Meeting) or (2) fail to reaffirm the Company Board Recommendation within five (5) Business Days after any request by Parent to do so (or such fewer number of days as remains prior to the Company Stockholders’ Meeting so long as such request is made at least one (1) Business Day prior to the Company Stockholders’ Meeting), it being understood and agreed that, other than requests for reaffirmation made by Parent within five (5) Business Days of the date that an Acquisition Proposal constitutes first becomes public, Parent shall be entitled to request a Superior Proposal reaffirmation of the Company Board Recommendation on a maximum of two (2) occasions or (E) publicly propose to do any of the foregoing in clauses (A) through (D) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ; or (iv) agree to authorize or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument or agreement, with respect towhether written or oral, binding or in connection withnon-binding, any relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aveo Pharmaceuticals, Inc.)
General Prohibitions. Neither Except as expressly permitted pursuant to Section 6.4(b), from and after the date hereof and prior to the earlier of the termination of this Agreement in accordance with Section 10.1 and the Closing Date, the Company nor shall not (and the Company shall (A) cause its Subsidiaries not to and (B) not authorize or permit and shall instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Subsidiaries’ Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of or assist any Acquisition Proposal, or any inquiry inquiries or the making of any proposal or offer that could constitutes or would reasonably be expected to lead to, to the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, or furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, personnel, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that has madewith respect to inquiries regarding, or, to or the Company’s Knowledge, is seeking to makemaking of, an Acquisition Proposal, (iii) (A) fail to makequalify, withdraw, or modify or qualify amend in any a manner adverse to Parent Parent, the Transaction Committee Recommendation or the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommendrecommend an Acquisition Proposal), or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal do any of the foregoing (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to approve, endorse, recommend or enter into (or agree or publicly propose to do any of the foregoing) any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, instrument relating to an Acquisition Proposal (other than a confidentiality agreement with respect to, or a Third Party to whom the Company is permitted to provide information in connection with, any Acquisition Proposalaccordance with Section 6.4(b)(i)), or (v) grant any waiver waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or similar agreement to which provision contained in the Company is Charter Documents other than a party waiver of the obligations of Third Parties existing as of the date of this Agreement not to seek from the Company any Personwaiver of such Third Parties’ standstill obligations and granting a limited waiver if requested solely to enable such Third Parties to make an Acquisition Proposal to the Company Board. The Company agrees that any violations of shall (and the restrictions set forth in this Section 6.03 by Company shall (1) cause its Subsidiaries to and (2) instruct and use reasonable best efforts to cause its Representatives and any of its Subsidiaries’ Representatives shall be deemed to) cease immediately and cause to be a breach of this Agreement (including this Section 6.03) by terminated any and all existing activities, solicitations, encouragements, discussions or negotiations, if any, with any Third Party and its Representatives and its financing sources conducted prior to the Companydate hereof with respect to any Acquisition Proposal or efforts to obtain an Acquisition Proposal, and shall also request such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries prior to the date hereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gener8 Maritime, Inc.)
General Prohibitions. Neither the The Company nor any of and its Subsidiaries shallshall not, nor and each shall the Company or any of its Subsidiaries authorize or permit any of use their reasonable best efforts to cause its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toSubsidiaries, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, make an Acquisition Proposal, ; (iii) (A) fail to makemake the Company Board Recommendation, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any public statement inconsistent with the Company Board Recommendation except as permitted by Section 6.03(b) through 6.03(e) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ; (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries; or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal (other than a confidentiality agreement with a Third Party permitted under Section 6.03(b)). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Global Industries LTD)
General Prohibitions. Neither From and after the Go -Shop Period End Date until the earlier to occur of the time Stockholder Approval and, unless the Company has waived the condition set forth in Section 9.03(d), the Majority of the Minority Approval are obtained or the date of termination of this Agreement in accordance with Article 10, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into into, engage in or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of books, records, work papers and other documents related to the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by any Third Party that has made, orthat, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition ProposalProposal (other than to state the terms of this Agreement prohibit such discussion), (iii) (A) fail to makequalify, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub, or propose publicly to qualify, withdraw or modify in a manner adverse to Parent or Merger Sub the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommend, or propose publicly propose to approveadopt, adopt endorse, approve or recommend, an any Acquisition Proposal, or resolve to take any such action, (C) publicly make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board of Directors of the type contemplated by Rule 14d-9(f) under the 1934 Act; (D) other than with respect to a tender or exchange offer described in clause (C), following the date any Acquisition Proposal or announce that an Acquisition Proposal constitutes any material modification thereto is first publicly announced, fail to issue a Superior Proposal press release reaffirming the Company Board Recommendation within ten Business Days after a request by Parent to do so or (E) fail to include the Company Board Recommendation in the Proxy Statement when disseminated to the Company Stockholders (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), or (iv) agree to or enter into any agreement in principle, letter of intent, memorandum indication of understandinginterest, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Subsidiary of the Company or any Representative of the Company or any of its Subsidiaries, in the case of Representatives, (x) acting at the direction or (y) to the Knowledge of the Company, provided that the Company did not direct such Representatives to cease violating such restrictions reasonably promptly after acquiring such Knowledge, shall be deemed to be a breach of this Agreement (including this Section 6.036.03(b) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (ProFrac Holding Corp.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives“ Representatives ”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions (other than to state that the Company is not permitted to have discussions) or negotiations withwith any Third Party that is seeking to make, or has made, a Company Acquisition Proposal, (iii) furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Company Acquisition Proposal, (iiiiv) make a Company Adverse Recommendation Change, (Av) fail to make, withdraw, modify enforce or qualify in grant any manner adverse waiver or release under any standstill or similar agreement with respect to Parent any class of equity securities of the Company or any of its Subsidiaries unless the Board Recommendationof Directors of the Company determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law; provided, that the Company shall not enforce and hereby waives any provision of any such agreement that would prohibit a third party from communicating confidentially a Company Acquisition Proposal to the Company’s Board of Directors, (vi) approve any transaction under, or (B) approveany Person becoming an “ interested stockholder ” under, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) Section 203 of Delaware Law or (Bvii) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forinstrument relating to a Company Acquisition Proposal (other than a confidentiality agreement to the extent contemplated by Section 6.03(b)); provided that (so long as the Company and its Representatives have otherwise complied with this Section 6.03) none of the foregoing shall prohibit the Company and its Representatives from, at any time prior to the Company Stockholder Approval, participating in discussions with respect any Persons or group of Persons who has made a Company Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Acquisition Proposal is, or could reasonably be expected to lead to, or in connection with, any Acquisition a Superior Proposal, or (v) grant and any waiver or release under any standstill or similar agreement to which the Company such actions shall not be a breach of this Section 6.03(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (iA) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, Proposal or any inquiry inquiry, indication of interest or the making of any proposal that could reasonably be expected to lead to, the submission of to any Acquisition Proposal, (iiB) enter into conduct or participate engage in any discussions or negotiations with, furnish disclose any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or encourage any effort by by, any Third Party third party that could make, or has made, or, to the Company’s Knowledge, is seeking to make, an any Acquisition Proposal, (iiiC) (Ax) fail grant to make, withdraw, modify or qualify any third party a waiver of the ownership limitation of Company securities set forth in any manner adverse to Parent the Company Board RecommendationCompany’s Organizational Documents, or (By) approve, adopt or recommendapprove any transaction under, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as third party becoming an “Adverse Recommendation Change”)interested shareholders” under Applicable Law, (ivD) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, instrument relating to any Acquisition Proposal, or (vE) grant (x) recommend in favor of any waiver Acquisition Proposal, (y) fail to recommend against acceptance of any third party tender offer or release exchange offer for the Common Stock within ten (10) Business Days after the commencement (as defined in Rule 14d-2 under any standstill the Exchange Act) of such offer, or similar agreement (z) fail to which make, withdraw or modify in a manner adverse to Purchaser the Company Board Recommendation or take any action or make any statement inconsistent with the Company Board Recommendation, (any of the foregoing in this clause (E), an “Adverse Recommendation Change”). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions of the Company set forth in this Section 6.03 by any Representatives of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
General Prohibitions. Neither From and after the date hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with Article 11, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead toenter into, the submission of any Acquisition Proposal, (ii) enter into engage in or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of books, records, work papers and other documents related to the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to makequalify, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Sub, or propose publicly to qualify, withdraw or modify the Company Board Recommendation, or (B) approveadopt, adopt endorse, approve or recommend, or propose publicly propose to approveadopt, adopt endorse, approve or recommend, an any Acquisition Proposal, or resolve to take any such action, publicly make any recommendation in connection with a tender offer or exchange offer (other than the Offer) other than a recommendation against such offer or a temporary “stop, look and listen” communication by the Board of Directors of the type contemplated by Rule 14d-9(f) under the 1934 Act; other than with respect to a tender or exchange offer described in clause (C), following the date any Acquisition Proposal or announce that an Acquisition Proposal constitutes any material modification thereto is first made public, fail to issue a Superior Proposal press release reaffirming the Company Board Recommendation within ten Business Days after a request by Parent to do so or fail to include the Company Board Recommendation in the Schedule 14D-9 and Proxy Statement when disseminated to the Company’s stockholders (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum indication of understandinginterest, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Subsidiary of the Company or any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dawson Geophysical Co)
General Prohibitions. Neither Prior to the Acceptance Time, neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, : (i) solicit, initiate or take any action to knowingly assist, facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, ; (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate in or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, make or would be reasonably expected to make an Acquisition Proposal, ; (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent or Merger Subsidiary the Company Board Recommendation (or recommend an Acquisition Proposal or make any public statement (or statement to any of its stockholders (other than, for the avoidance of doubt, to a director of the Company in his capacity as such)) inconsistent with the Company Board Recommendation (including publicly proposing to withdraw or modify the Company Board Recommendation, or (B)) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), ; (iv) agree fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law; or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 7.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.037.03(a) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Foundation Medicine, Inc.)
General Prohibitions. Neither (i) Subject to Section 6.3(b), neither the Company nor any of its Subsidiaries shall, nor shall and the Company or any of and its Subsidiaries shall cause its and their respective directors, officers, employees not to, shall direct its Representatives not to, and shall not authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate initiate, propose or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries or the making or submission of any Acquisition Proposalproposal or offer that constitutes, or any inquiry or the making of any proposal that could reasonably would reasonable be expected to lead to, the submission of any Acquisition ProposalProposal (including by approving any transaction, or approving any Person or Group (within the meaning of Rule 13d-5 under the 1934 Act) becoming an “interested stockholder,” for purposes of Article TENTH of the Company’s certificate of incorporation), (ii) enter into or participate in any discussions discussions, communications or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries Subsidiaries, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party relating to or in furtherance of, any proposal or offer that has madeconstitutes, oror would reasonably be expected to lead to, to the Company’s Knowledge, is seeking to make, an any Acquisition Proposal, (iii) (Ax) fail to makeapprove, withdraw, modify endorse or qualify in recommend any manner adverse to Parent the Company Board Recommendationproposal, or (By) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, letter of intent (binding or non-binding) or other similar Contract providing forContract, with respect toin each case of clause (x) or (y), relating to any Acquisition Proposal or any proposal or offer that constitutes, or in connection withwould reasonably be expected to lead to, any Acquisition ProposalProposal (other than, in the case of clause (y), an Acceptable Confidentiality Agreement (and any such agreement in clause (y), an “Alternative Acquisition Agreement”)), or (viv) grant resolve or agree to do any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Companyforegoing.
Appears in 1 contract
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, Proposal or any inquiry inquiry, indication of interest or the making of any proposal that could reasonably be expected to lead to, the submission of to any Acquisition Proposal, or, (ii) enter into conduct or participate engage in any discussions or negotiations with, furnish disclose any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, knowingly facilitate or encourage any effort by by, any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, any Acquisition Proposal, (iii) (Ax) fail amend or grant any waiver or release under any standstill or similar agreement with respect to make, withdraw, modify or qualify in any manner adverse to Parent class of equity securities of the Company Board Recommendationor any of its Subsidiaries under the Company Rights Agreement, or (By) approve, adopt or recommendapprove any transaction under, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as Third Party becoming an “Adverse Recommendation Change”)interested shareholders” under Applicable Law, (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, instrument relating to any Acquisition Proposal, or (v) grant (A) recommend in favor of any waiver Acquisition Proposal, (B) fail to recommend against acceptance of any Third Party tender offer or release exchange offer for the Common Stock within ten (10) Business Days after the commencement (as defined in Rule 14d-2 under any standstill the 0000 Xxx) of such offer, (C) fail to make, withdraw or similar agreement modify in a manner adverse to which Buyer the Company Board Recommendation or take any action or make any statement inconsistent with the Company Board Recommendation, or (D) resolve or agree to take any of the foregoing actions (any of the foregoing in this clause (v), an “Adverse Recommendation Change”). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions of the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Share Subscription Agreement (Altair Nanotechnologies Inc)
General Prohibitions. Neither Except as expressly permitted by this Section 6.03, the Company nor any of shall not, and shall cause its Subsidiaries shall, nor shall the Company or any of and its Subsidiaries authorize or permit any of its or and their respective officers, directors, directors and employees, and shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants, consultants or and other agents, advisors or advisors, intermediaries and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Company Acquisition Proposal, (iii) amend or grant any waiver or release under or fail to enforce any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, unless the board of directors of the Company determines after considering advice from outside legal counsel to the Company that the failure to waive or release such provision would be inconsistent with its fiduciary duties under Applicable Law (provided that the foregoing shall not restrict the Company from permitting a Person to orally request the waiver of a “standstill” or similar obligation to the extent necessary to comply with fiduciary duties under Applicable Law), (iv) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommendParent, or publicly propose to approvewithdraw or modify in a manner adverse to Parent, the approval by the board of directors of the Company of this Agreement and the transactions contemplated hereby or the Company Board Recommendation (it being understood that if any Company Acquisition Proposal structured as a tender or exchange offer is commenced, the board of directors of the Company failing to recommend against acceptance of such tender or exchange offer by the Company’s shareholders within 10 Business Days of commencement thereof pursuant to Rule 14d-2 of the 1934 Act shall be considered a modification in a manner adverse to Parent), (B) fail to make or include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, an adopt or approve a Company Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as iv), an “Adverse Recommendation Change”), or (ivv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any agreement relating to a Company Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Subsidiary of the Company or any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants consultants, or other agents, agents or advisors or (in their capacities as representatives (“Representatives”of the Company) to, directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, modify or qualify fail to make in any a manner adverse to Parent the Company Board RecommendationRecommendation (or recommend an Acquisition Proposal) (any of the foregoing in this clause (iii), or an “Adverse Recommendation Change”); provided, that none of (A) the factually accurate disclosure by the Company of the receipt of an Acquisition Proposal, (B) approve, adopt the determination by the Board of Directors (or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce a committee thereof) that an Acquisition Proposal constitutes a Superior Proposal Proposal; or (C) the delivery by the Company of any action described in this clause notice contemplated by Section 6.04(c) will constitute an Adverse Recommendation Change, (iv) fail to enforce, or grant any waiver or release under, any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, other than (A) in connection with a bona fide Acquisition Proposal or (B) being referred to as the extent the Board of Directors (or any committee thereof) has determined in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (v) approve any transaction under, or any Person becoming an “Adverse Recommendation Change”)interested stockholder” under, Section 203 of Delaware Law or (ivvi) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 6.04 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (LiveVox Holdings, Inc.)
General Prohibitions. Neither From the date of this Agreement until the Effective Time, and subject to Section 6.04(b), Section 6.04(c) and Section 6.04(d), the Company nor any of its Subsidiaries shallshall not, nor shall and the Company or any of its Subsidiaries shall not authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate (it being understood that ministerial acts that are not otherwise prohibited by this Section 6.04, such as taking unsolicited phone calls, shall not be deemed to “facilitate” for purposes of this Section 6.04) or knowingly encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) other than informing Persons of the provisions contained in this Section 6.04, enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, knowingly participate in, knowingly facilitate or knowingly encourage any effort by by, any Third Party that has made, or, made or is seeking (to the knowledge of the Company’s Knowledge, is seeking ) to make, make an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any public statement inconsistent with the Company Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party with respect to any Person. The Company agrees that any violations class of equity securities of the restrictions set forth Company; (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (vi) enter into any agreement in this principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal (other than a confidentiality agreement pursuant to Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company6.04(b)).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Omthera Pharmaceuticals, Inc.)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or knowingly permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposalinquiries, proposals or offers or any other efforts or attempts that constitute, or any inquiry or the making of any proposal that could may reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toto (other than information furnished via the filing of the Company 20-F or periodic report on Form 6-K with respect to a Superior Proposal after the Company has complied with Sections 5.03(b), 5.03(c) and 5.03(d)), or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent Parent, the Company Board Recommendation (or recommend an Acquisition Proposal or make any statement inconsistent with the Company Board Recommendation, or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries, or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal. It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
General Prohibitions. Neither the Company Parent nor any of its Subsidiaries shall, nor shall the Company Parent or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Parent Acquisition Proposal, (ii) enter into or participate in any discussions discus- sions (other than to state that Parent is not permitted to have discussions) or negotiations withwith any Third Party that is seeking to make, or has made, a Parent Acquisition Proposal, (iii) furnish any non-public information relating to the Company Parent or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Parent or any of its Subsidiaries to, or otherwise other- wise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage en- courage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Parent Acquisition Proposal, (iiiiv) make a Parent Adverse Recommendation Change, (Av) fail to makeenforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Parent or any of its Subsidiaries unless the Board of Directors of Parent determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law; provided that Parent shall not en- force and hereby waives any provision of any such agreement that would prohibit a Third Party from communicating confidentially a Parent Acquisition Proposal to the Parent’s Board of Di- rectors, withdraw, modify or qualify in (vi) approve any manner adverse to Parent the Company Board Recommendationtransaction under, or (B) approveany Person becoming an “interested stockholder” under, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) Section 203 of Delaware Law or (Bvii) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understandingin- tent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forin- strument relating to a Parent Acquisition Proposal (other than a confidentiality agreement to the extent contemplated by Section 7.04(b)); provided that (so long as Parent and its Representa- tives have otherwise complied in all material respects with this Section 7.04) none of the fore- going shall prohibit Parent and its Representatives from, at any time prior to the Parent Stock- holder Approval, participating in discussions with respect any Persons or group of Persons who has made a Parent Acquisition Proposal after the date of this Agreement solely to request the clari- fication of the terms and conditions thereof so as to determine whether the Parent Acquisition Proposal is, or could reasonably be expected to lead to, or in connection with, any Acquisition a Parent Superior Proposal, or (v) grant and any waiver or release under any standstill or similar agreement to which the Company such actions shall not be a breach of this Section 7.04(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on Parent set forth in this Section 6.03 7.04 by any Representative of Parent or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 7.04 by the CompanyParent.
Appears in 1 contract
Samples: Agreement and Plan of Mergers
General Prohibitions. Neither Prior to receipt of the Company Parent Shareholder Approvals, neither Parent nor any of its Subsidiaries shall, nor shall the Company Parent or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Parent Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company Parent or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Parent or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, knowingly participate in, knowingly facilitate or encourage any effort by any Third Party that has made, or, indicated to the Company’s Knowledge, Parent it is seeking to make, an or has made, a Parent Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company the Parent Board Recommendation, Recommendation (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an recommend a Parent Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Parent Board Recommendation) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Parent Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party with respect to any Personclass of equity securities of Parent or any of its Subsidiaries to the extent such waiver or release would permit any Person to make a Parent Acquisition Proposal or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to a Parent Acquisition Proposal. The Company agrees It is agreed that any violations violation of the restrictions on Parent set forth in this Section 6.03 by any Representative of Parent or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by Parent. Making an Adverse Parent Recommendation Change shall not relieve Parent of its obligation to hold the CompanyParent Shareholders Meeting to seek the Parent Shareholder Approvals in accordance with Section 8.06.
Appears in 1 contract
General Prohibitions. Neither the Company Acquiror nor any of its Subsidiaries shall, nor shall the Company Acquiror or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, advisors or representatives (“Representatives”) Representatives to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquiror Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any information relating to the Company Acquiror or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Acquiror or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, or has made, an Acquiror Acquisition Proposal, (iii) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company the Acquiror Board Recommendation, Recommendation (or (Brecommend an Acquiror Acquisition Proposal) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Acquiror Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party with respect to any Personclass of equity securities of Acquiror or any of its Subsidiaries, or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquiror Acquisition Proposal. The Company agrees It is agreed that any violations violation of the restrictions on Acquiror and its Subsidiaries set forth in this Section 6.03 by any Subsidiary or Representative of Acquiror or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the CompanyAcquiror.
Appears in 1 contract
Samples: Agreement and Plan of Arrangement (Charles River Laboratories International Inc)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, knowingly participate in, knowingly facilitate or encourage any effort by any Third Party that has made, or, indicated to the Company’s Knowledge, Company it is seeking to make, an or has made, a Company Acquisition Proposal, (iii) (A) fail to make, withdraw, convene a meeting of the Company Board for the purpose of seeking the Final Offer Recommendation in accordance with (and subject to the provisions of) Section 2.02(c) or withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation or the Final Offer Recommendation, if any, (or (B) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, an recommend a Company Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Company Board Recommendation or the Final Offer Recommendation, if any) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Company Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement with respect to which any class of equity securities of the Company or any of its Subsidiaries to the extent such waiver or release would permit any Person to make a Company Acquisition Proposal or (v) enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to a Company Acquisition Proposal. It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company. Subject to the proviso to Section 7.02, making an Adverse Company Recommendation Change shall not relieve the Company of its obligations under Section 7.02 or its obligations to seek the Company Shareholder Approvals or to hold any Company Shareholder Meetings in respect thereof.
Appears in 1 contract
General Prohibitions. Neither From the Company date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with Section 11.01, except as otherwise set forth in this Section 5.03, neither Aspen nor any of its Subsidiaries nor any of their respective officers, directors or employees shall, nor and Aspen shall the Company instruct and shall use its reasonable best efforts to cause its and its Subsidiaries’ respective investment bankers, attorneys, accountants, consultants or any of its Subsidiaries authorize other agents or permit any of its or their advisors (such officers, directors, employees, investment bankers, attorneys, accountants, consultants or other agentsagents or advisors, advisors or representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition Proposal, (ii) enter into or participate in any discussions (other than to request clarification of an unsolicited Acquisition Proposal for purposes of assessing whether such Acquisition Proposal is or is reasonably likely to result in a Superior Proposal) or negotiations with, furnish any information relating to the Company Aspen or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company Aspen or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party in connection with an Acquisition Proposal or an offer, proposal or inquiry that has made, or, could reasonably be expected to the Company’s Knowledge, is seeking lead to make, an Acquisition Proposal, (iii) (A) fail to make, withdrawwithdraw or modify, modify or qualify in any a manner adverse to Parent Xxxxxxx, the Company Aspen Board RecommendationRecommendation (it being understood that any failure to publicly (A) if a tender or exchange offer for Aspen Stock that constitutes an Acquisition Proposal is commenced, recommend against such Acquisition Proposal within ten Business Days after the commencement of such Acquisition Proposal or (B) approve, adopt reaffirm the Aspen Board Recommendation within ten Business Days after written request by Xxxxxxx to do so will be treated as a withdrawal of the Aspen Board Recommendation; provided that Xxxxxxx shall be entitled to make such a written request for reaffirmation only once for each Acquisition Proposal and once for each material amendment to such Acquisition Proposal) or recommend, or publicly propose to approve, adopt or recommend, recommend an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree fail to enforce or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of Aspen or any of its Subsidiaries (provided that if the Board of Directors of Aspen determines in good faith that failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law, then (A) Aspen may fail to enforce or grant any waiver or release under any such standstill or similar agreement to the extent necessary to permit the Person bound by such provision or agreement to make an Acquisition Proposal to the Board of Directors of Aspen and (B) concurrently with such waiver, release or failure to enforce by Aspen, any standstill or similar provisions in the Confidentiality Agreement shall immediately and automatically cease to be of any force or effect), (v) approve any transaction under, or any Person becoming an “interested stockholder” under, Section 203 of Delaware Law or (vi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any instrument relating to an Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on Aspen set forth in this Section 6.03 by any officer, director or employee of Aspen or any of its Representatives Subsidiaries, and any violation of such restrictions by a Representative of Aspen or any of its Subsidiaries acting on behalf of Aspen or any of its Subsidiaries with the knowledge of Aspen or resulting from actions directed by Aspen or any of its Subsidiaries or any of their respective officers, directors or employees, shall be deemed to be constitute a breach of this Agreement (including this Section 6.03) by the CompanyAspen.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Aspen Technology Inc /De/)
General Prohibitions. Neither Subject to Section 6.4(b), the Company nor any of its Subsidiaries shallshall not, nor shall the Company or any of its Subsidiaries it authorize or permit any of its Subsidiaries or any of its or their officers, respective directors, officers or employees, investment bankers, financial advisors, attorneys, accountants, consultants accountants or other agentsadvisors, advisors agents or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposalinitiate, or knowingly encourage or facilitate, any inquiry inquiries or the making of any proposal that could constitutes or is reasonably be expected likely to lead to, the submission of any Acquisition to a Takeover Proposal, (ii) other than solely informing Persons of the provisions contained in this Section 6.4, enter into or participate in any discussions or negotiations regarding any Takeover Proposal, furnish to any Third Party any information (whether orally or in writing) in connection with, furnish or in furtherance, of any information relating to the Company or any of its Subsidiaries Takeover Proposal, or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries toSubsidiaries, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party that has made, or, to the Company’s Knowledge, is seeking to make or has informed the Company of any intention to make, or has publicly announced an Acquisition intention to make, a Takeover Proposal, (iii) (A) fail to make, withdraw, withdraw or modify in a manner adverse to Parent or qualify publicly propose to withdraw or modify in any a manner adverse to Parent the Company Board RecommendationOffer Recommendation or Merger Recommendation (it being understood that, subject to and without limitation of Section 6.4(g), taking a neutral position or (B) approveno position with respect to any Takeover Proposal shall be considered an adverse modification), recommend, adopt or recommendapprove, or publicly propose to approverecommend, adopt or recommendapprove, an Acquisition Proposal a Takeover Proposal, or announce that an Acquisition Proposal constitutes a Superior Proposal take any action or make any statement inconsistent with the Offer Recommendation or Merger Recommendation (any action described of the foregoing in this clause (A) or (B) being referred to as an iii), a “Company Adverse Recommendation Change”), (iv) agree take any action not already taken to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including approving any transaction under, or a Third Party becoming an “interested shareholder” under, Article 14 (Affiliated Transactions) of the VSCA), or any restrictive provision of any applicable anti-takeover provision in the Company’s articles of incorporation or bylaws, inapplicable to any transactions contemplated by a Takeover Proposal, (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.instrument
Appears in 1 contract
Samples: Agreement of Merger (New River Pharmaceuticals Inc)
General Prohibitions. Neither the Company nor any of its Subsidiaries shall, nor shall the Company or any of its Subsidiaries authorize or permit any of its or their officersof- ficers, directors, employees, investment bankers, attorneys, accountants, consultants or other agents, agents or advisors or representatives (“Representatives”) to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Company Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Acquisition ProposalPro- posal, (ii) enter into or participate in any discussions (other than to state that the Company is not permitted to have discussions) or negotiations withwith any Third Party that is seeking to make, or has made, a Company Acquisition Proposal, (iii) furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by any Third Party Par- ty that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Company Acquisition Proposal, (iiiiv) make a Company Adverse Recommendation Change, (Av) fail to make, withdraw, modify enforce or qualify in grant any manner adverse waiver or release under any standstill or similar agreement with respect to Parent any class of equity securities of the Company or any of its Subsidiaries unless the Board Recommendationof Directors of the Company determines after consulting with its outside legal counsel that the failure to waive such provision would be inconsistent with its fiduciary duties under Applicable Law; provided that the Company shall not enforce and hereby waives any provision of any such agreement that would prohibit a Third Party from communicating confidentially a Company Acquisition Proposal to the Company’s Board of Di- rectors, (vi) approve any transaction under, or (B) approveany Person becoming an “interested stockholder” under, adopt or recommend, or publicly propose to approve, adopt or recommend, an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) Section 203 of Delaware Law or (Bvii) being referred to as an “Adverse Recommendation Change”), (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understandingin- tent, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing forin- strument relating to a Company Acquisition Proposal (other than a confidentiality agreement to the extent contemplated by Section 6.03(b)); provided that (so long as the Company and its Rep- resentatives have otherwise complied in all material respects with this Section 6.03) none of the foregoing shall prohibit the Company and its Representatives from, at any time prior to the Company Stockholder Approval, participating in discussions with respect any Persons or group of Per- sons who has made a Company Acquisition Proposal after the date of this Agreement solely to request the clarification of the terms and conditions thereof so as to determine whether the Com- pany Acquisition Proposal is, or could reasonably be expected to lead to, or in connection with, any Acquisition a Company Superior Proposal, or (v) grant and any waiver or release under any standstill or similar agreement to which the Company such actions shall not be a breach of this Section 6.03(a). It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) 6.03 by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Mergers
General Prohibitions. Neither Subject to Section 4.2(b), the Company nor any of its Subsidiaries shallSeller shall not, nor shall the Company or any of its Subsidiaries it authorize or permit any of its Subsidiaries or any of its or their officers, respective directors, officers or employees, or any investment bankers, financial advisors, attorneys, accountants, consultants accountants or other agentsadvisors, advisors agents or representatives retained by the Seller or any of its Subsidiaries (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate initiate, knowingly encourage or take knowingly facilitate, any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry inquiries or the making of any proposal that could constitutes or is reasonably be expected likely to lead to, the submission of any to an Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal, furnish to any third party any information (whether orally or in writing) in connection with, furnish or in furtherance, of any information relating to the Company or any of its Subsidiaries Acquisition Proposal, or afford access to the business, properties, assets, books or records of the Company Seller or any of its Subsidiaries toSubsidiaries, or otherwise knowingly cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party third party that has made, or, to the Company’s Knowledge, is seeking to make or has informed the Seller of any intention to make, or has publicly announced an intention to make, an Acquisition Proposal, (iii) take any action not already taken to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (A) fail to make, withdraw, modify or qualify in including approving any manner adverse to Parent the Company Board Recommendationtransaction under, or a third party becoming an “interested shareholder” under, Article 14 (BAffiliated Transactions) approve, adopt or recommendof the VSCA), or publicly propose any restrictive provision of any applicable anti-takeover provision in the Seller’s articles of incorporation or bylaws, inapplicable to approve, adopt or recommend, any transactions contemplated by an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described in this clause (A) or (B) being referred to as an “Adverse Recommendation Change”)Proposal, (iv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, asset purchase agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, instrument constituting or relating to an Acquisition Proposal (other than a confidentiality agreement of the type referred to in connection with, any Acquisition Proposal, Section 4.2(b)) or (v) grant any third party any waiver or release under any standstill or similar agreement to which the Company is a party with respect to any Personclass of equity securities of the Seller or any of its Subsidiaries. The Company agrees Without limiting the foregoing, it is agreed that any violations violation of the restrictions on the Seller set forth in this Section 6.03 the preceding sentence by any Representative of the Seller or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the CompanySeller.
Appears in 1 contract
General Prohibitions. Neither Except as expressly permitted by this Section 6.03, the Company nor any of shall not, and shall cause its Subsidiaries shall, nor shall the Company or any of and its Subsidiaries authorize or permit any of its or and their respective officers, directors, directors and employees, and shall instruct and use reasonable best efforts to cause its and its Subsidiaries’ investment bankers, attorneys, accountants, consultants or and other agents, advisors or advisors, intermediaries and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate or take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any Company Acquisition Proposal, (ii) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by by, any Third Party that has made, or, to the Company’s Knowledge, is seeking to make, an or has made, a Company Acquisition Proposal, (iii) amend or grant any waiver or release under or fail to enforce any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, unless the board of directors of the Company determines after considering advice from outside legal counsel to the Company that the failure to waive or release such provision would be inconsistent with its fiduciary duties under Applicable Law (provided that the foregoing shall not restrict the Company from permitting a Person to orally request the waiver of a “standstill” or similar obligation to the extent necessary to comply with fiduciary duties under Applicable Law), (iv) (A) fail to make, withdraw, withdraw or modify or qualify in any a manner adverse to Parent the Company Board Recommendation, or (B) approve, adopt or recommendParent, or publicly propose to approvewithdraw or modify in a manner adverse to Parent, the approval by the board of directors of the Company of this Agreement and the transactions contemplated hereby or the Company Board Recommendation (it being understood that if any Company Acquisition Proposal structured as a tender or exchange offer is commenced, the board of directors of the Company failing to recommend against acceptance of such tender or exchange offer by the Company’s shareholders within 10 Business Days of commencement thereof pursuant to Rule 14d-2 of the 1934 Act shall be considered a modification in a manner adverse to Parent), (B) fail to make or include the Company Board Recommendation in the Joint Proxy Statement/Prospectus or (C) recommend, adopt or approve or publicly propose to recommend, an adopt or approve a Company Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal (any action described of the foregoing in this clause (A) or (B) being referred to as Section 6.03, an “Adverse Recommendation Change”), or (ivv) agree to or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, with respect to, or in connection with, any agreement relating to a Company Acquisition Proposal, or (v) grant any waiver or release under any standstill or similar agreement to which the Company . It is a party to any Person. The Company agrees agreed that any violations violation of the restrictions on the Company set forth in this Section 6.03 by any Subsidiary of the Company or any Representative of the Company or any of its Representatives Subsidiaries shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Mergers
General Prohibitions. Neither After the date hereof and prior to the earlier of the Acceptance Time and the termination of this Agreement in accordance with this Section 7.03 or Article 11, the Company nor any of and its Subsidiaries shall, nor (and its and their directors and officers) shall not (and the Company shall use its reasonable best efforts to cause its or any of its Subsidiaries authorize or permit any of its or their officers, directors, employees, investment bankers, attorneys, accountants, consultants or Subsidiaries’ other agents, advisors or representatives (“Representatives”) Representatives not to), directly or indirectly, (i) solicit, initiate or knowingly take any action to knowingly facilitate or encourage (including by way of furnishing non-public information) the submission of any Acquisition Proposal, or any offer or inquiry or the making of any proposal that could reasonably be expected to lead to, the submission of any result in an Acquisition Proposal, (ii) enter into into, continue or participate in any discussions or negotiations with, furnish any information relating to the Company or any of its Subsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or encourage any effort by to any Third Party that has madewith respect to inquiries regarding, or, to or the Company’s Knowledge, is seeking to makemaking of or otherwise relating to, an Acquisition Proposal, (iii) (A) fail to make, withdraw, modify or qualify amend in any a manner adverse to Parent the Company Board Recommendation, Recommendation (or (B) approve, adopt recommend or recommend, otherwise declare advisable (or agree or publicly propose to approve, adopt recommend or recommend, declare advisable) an Acquisition Proposal or announce that an Acquisition Proposal constitutes a Superior Proposal Proposal) (any action described of the foregoing in this clause (A) or (B) being referred to as iii), an “Adverse Recommendation Change”), (iv) agree terminate, amend, modify, grant any waiver, release or consent under or fail to enforce the Rights Agreement (other than the amendment contemplated by Section 5.23) or any standstill, confidentiality or similar agreement involving the Company and its securities, other than, in the case of any standstill, confidentiality or similar agreement involving the Company and its securities, to allow any Third Party to such agreement to make an Acquisition Proposal to the Company that is not publicly disclosed by such Third Party and is not directly made to the Company’s stockholders, (v) approve, adopt, recommend or enter into (x) any merger agreement, acquisition agreement or other similar definitive agreement (an “Alternative Acquisition Agreement”) or (y) any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, agreement or other similar Contract providing for, agreement or instrument relating to (or that contemplates or that would reasonably be expected to lead to) an Acquisition Proposal (other than a confidentiality agreement with respect to, or a Third Party to whom the Company is permitted to provide information in connection with, any Acquisition Proposalaccordance with Section 7.03(b)(i)), or (vvi) grant resolve, publicly propose or agree to do any waiver or release under any standstill or similar agreement to which the Company is a party to any Person. The Company agrees that any violations of the restrictions set forth in this Section 6.03 by any of its Representatives shall be deemed to be a breach of this Agreement (including this Section 6.03) by the Companyforegoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Harris Interactive Inc)
