No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Jorgensen Earle M Co /De/), Agreement and Plan of Merger (Reliance Steel & Aluminum Co), Agreement and Plan of Merger (Reliance Steel & Aluminum Co)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it permit any of its Subsidiaries to, or authorize or permit any Company Subsidiary todirector, nor shall it authorize officer or permit any Representative of, employee of the Company or any Company Subsidiary toof its Subsidiaries or any investment banker, and attorney, accountant or other advisor or representative of the Company shall cause or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiatenegotiate or encourage, or take any other action knowingly encourage to facilitate, any Takeover Proposal (as defined below) or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toway with, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made in each case other than a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposalmade by Parent; provided, however, that, that at any time prior to the consummation obtaining approval of the MergerCompany's shareholders as contemplated by Section 6.02 hereof, in addition to Section 5.02(b), the Board of Directors of the Company may, in response to an unsolicited a bona fide Company written Takeover Proposal that such Board of Directors reasonably determines in good faith is reasonably likely to result in an Adverse Recommendation Change (as defined below) or, after consultation with its independent financial advisors, constitutes a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c)6.04, (x) furnish information with respect to the Company and its Subsidiaries to the person making such Company Takeover Proposal (and its Representatives representatives) pursuant to a customary confidentiality agreement (which shall have with terms and conditions no less not more favorable to such person than those in the Confidentiality Agreement), provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives representatives) regarding such Takeover Proposal, provided that the Company shall have delivered to Parent prior written notice advising Parent that it intends to participate in such discussions or negotiations. The Company will immediately cease all existing activities, discussions and negotiations with any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position parties conducted heretofore with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 Takeover Proposal and Rule 14e-2 promulgated under request the Exchange Act (provided that return of all confidential information regarding the Company Board shall not recommend that and ELF provided to any such parties prior to the Company’s stockholders tender their shares date hereof pursuant to the terms of capital stock in the Company in connection with such tender offer any confidentiality agreements or exchange unless the Company has complied with Section 5.02(b))otherwise.
Appears in 3 contracts
Samples: Agreement and Plan of Restructuring and Merger (Keebler Foods Co), Agreement and Plan of Restructuring and Merger (Kellogg Co), Agreement and Plan of Restructuring and Merger (Flowers Industries Inc /Ga)
No Solicitation. (a) From Neither of the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not toCompanies shall, directly or indirectly, through any officer, director, employee, stockholder, financial advisor, agent or other representative (including any investment banker, attorney or accountant retained by the Companies or by any of their subsidiaries or stockholders) (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal proposals that constitutesconstitute, or may would reasonably be expected to lead to, (x) a breach of this Agreement or the Voting Agreement or otherwise interfere in any Company Takeover material respect with the completion of the Mergers or (y) a proposal or offer for an Alternative Transaction (as defined below) involving either of the Companies or any of their subsidiaries (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) participate or engage in negotiations or discussions concerning, or provide any non-public information to any person relating to, or otherwise facilitate any effort or attempt to make or implement, any Acquisition Proposal, or afford access (iii) agree to properties, books or records of the Company or the Company Subsidiaries to, recommend to its stockholders any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however, that, prior to that nothing contained in this Agreement shall prevent either Company from complying with Rule 14e-2 under the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information Exchange Act with respect to the Company an Acquisition Proposal. The Companies agrees that they will immediately cease and cause to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement)be terminated any existing activities, (y) participate in discussions or negotiations with such person any persons (other than Parent and its Representatives regarding any Company Takeover Proposal and (zGC Merger Sub) take, and disclose to the Company’s stockholders, a position conducted heretofore with respect to any tender offer Acquisition Proposal. The Companies agrees not to release any other person from, or exchange offer by waive any provision of, any standstill agreement to which it is a third party or amend any confidentiality agreement between it and another person who has made or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under who may reasonably be considered likely to make an Acquisition Proposal. The Companies agrees that they will take the Exchange Act (provided that necessary steps to inform promptly the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock individuals or entities referred to in the Company first sentence of this Section 5.12 of the obligations undertaken in connection with such tender offer or exchange unless the Company has complied with this Section 5.02(b))5.12.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Global Crossing LTD), Agreement and Plan of Merger (Global Crossing Holdings LTD), Agreement and Plan of Merger (Cable Systems Holding LLC)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize (and shall use its best efforts not to permit) any affiliate, officer, director or permit any Representative employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of the Company or any Company Subsidiary of its Subsidiaries to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to(i) solicit or initiate, or encourage, directly or indirectly, (i) solicitany inquiries relating to, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of of, any Company Takeover Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regardingregarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any person Person any information or data with respect toto or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that nothing contained in this Section 5.3 or afford access to properties, books or records of any other provision hereof shall prohibit the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation Company’s board of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result directors from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal taking and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose disclosing to the Company’s stockholders, stockholders a position with respect to any a tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule pursuant to Rules 14d-9 and Rule 14e-2 promulgated under the Exchange Act Act, or (provided that the Company Board shall not recommend that y) making such disclosure to the Company’s stockholders tender their shares of capital stock as, in the good faith judgment of the Company’s board of directors, pursuant to advice from independent legal counsel, is reasonably expected to be required under applicable law, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, the Company will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or “group” (as defined in connection the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such tender offer Person or exchange unless group whether or not such Person or group has had previous discussions or negotiations with the Company has complied with concerning a Superior Proposal (as defined below), provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the information required to be disclosed by the Company to Parent by this Section 5.02(b)).5.3) if:
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Borland Software Corp), Agreement and Plan of Merger (Borland Software Corp), Agreement and Plan of Merger (Starbase Corp)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company Elf shall not, nor shall it permit any of its Subsidiaries to, or authorize or permit any Company Subsidiary todirector, nor shall it authorize officer or permit any Representative of, the Company employee of Elf or any Company Subsidiary toof its Subsidiaries or any investment banker, and the Company shall cause attorney, accountant or other advisor or representative of Elf or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiatenegotiate or encourage, or take any other action knowingly encourage to facilitate, any Takeover Proposal (as defined below) or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toway with, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made in each case other than a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposalmade by Parent; provided, however, that, that at any time prior to obtaining the consummation written consent of the Merger, in addition to TULIP as contemplated by Section 5.02(b)6.02 hereof, the Company Board of Directors of Elf may, in response to an unsolicited a bona fide Company written Takeover Proposal which did not result from a breach that such Board of this Section 5.02(a) and which the Company Board determines, Directors reasonably determines in good faith, after consultation with its outside legal counsel and independent financial advisors, is, or may reasonably be expected to lead to, constitutes a Superior Company ProposalProposal (as defined below), and subject to compliance with which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 5.02(c)6.04, (x) furnish information with respect to the Company Elf and its Subsidiaries to the person making such Company Takeover Proposal (and its Representatives representatives) pursuant to a customary confidentiality agreement (which shall have with terms and conditions no less not more favorable to such person than those in the Confidentiality Agreement), provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives representatives) regarding such Takeover Proposal, provided that Elf shall have delivered to Parent prior written notice advising Parent that it intends to participate in such discussions or negotiations. Elf will immediately cease all existing activities, discussions and negotiations with any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position parties conducted heretofore with respect to any tender offer Takeover Proposal and request the return of all confidential information regarding Elf provided to any such parties prior to the date hereof pursuant to the terms of any confidentiality agreements or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))otherwise.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Flowers Industries Inc /Ga), Agreement and Plan of Merger (Keebler Foods Co), Agreement and Plan of Merger (Kellogg Co)
No Solicitation. (a) From and after the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIhereof, the Company shall not, nor and shall it not authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company of its Subsidiaries or any Company Subsidiary to, and the Company shall cause of its and the Company or its Subsidiaries’ Representatives not directors, officers, employees, agents or representatives to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constituteswith respect to any merger, liquidation, recapitalization, consolidation or may reasonably be expected to lead to, other business combination involving the Company or any Company Takeover Proposal, of its Subsidiaries or afford access to properties, books acquisition of any capital stock or records any material portion of the assets of the Company or any of its Subsidiaries, or any combination of the Company Subsidiaries toforegoing (any such proposal or transaction, other than any such proposal by Parent, Merger Sub or their respective directors, officers, employees, agents and representatives, an “Acquisition Proposal”), (ii) have any discussions with or provide any confidential information or data to any person relating to an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal or (iii) approve or recommend, or propose to approve or recommend, or execute or enter into, any Person that made a Company Takeover Proposal letter of intent, agreement in principle, or agreement to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however, that, that at any time prior to the consummation of the Merger, in addition to Section 5.02(b), Company Meeting the Company may, may furnish information and hold discussions in response to an unsolicited bona fide Company Takeover Proposal which did respect of any such proposal received that was not result from a breach of this Section 5.02(a) and which solicited or knowingly encouraged by the Company Board determines, if (x) the Special Committee determines in good faith, after following consultation with counsel, that failure to do so would constitute or result in a breach of its outside legal counsel fiduciary duties under applicable law and financial advisors(y) prior to providing any information pursuant to this proviso, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to shall have entered into a confidentiality agreement with such third party on customary terms. The Company will promptly (within one business day) following receipt of any Acquisition Proposal advise Parent of the substance thereof (including the identity of the person making such Company Takeover Proposal Acquisition Proposal), and its Representatives pursuant to a customary confidentiality agreement will keep Parent apprised of any related developments, discussions and negotiations (which shall have including the terms and conditions no less favorable than those of the Acquisition Proposal) on a current basis (and, in any event, within 48 hours of the Confidentiality occurrence of such developments, discussions or negotiations). For purposes of this Agreement, a “Superior Proposal” means a bona fide written Acquisition Proposal which the Board of Directors of the Company, acting upon the recommendation of the Special Committee (after consultation by such committee with its financial advisors and legal advisors), concludes in good faith, taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal (including any break-up fees, expense reimbursement provisions and conditions to consummation), (yi) participate is more favorable to the stockholders of the Company, from a financial point of view, than the transactions contemplated by this Agreement and (ii) is fully financed or reasonably capable of being fully financed and otherwise reasonably capable of being completed on the terms proposed, without taking into account whether or not Parent would acquiesce to such transaction; provided that, for purposes of this definition of “Superior Proposal,” the term “Acquisition Proposal” shall have the meaning assigned to such term in discussions this Section 6.03, except that “Acquisition Proposal” shall only be deemed to refer to a transaction involving the acquisition of a majority of the voting securities of the Company or negotiations with such person all or substantially all of the consolidated assets of the Company and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Subsidiaries.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Toronto Dominion Bank), Agreement and Plan of Merger (Toronto Dominion Bank), Agreement and Plan of Merger (Td Banknorth Inc.)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor and shall it authorize or not permit any Company Subsidiary toof its Subsidiaries and their respective officers, nor shall it authorize directors, employees, representatives (including its investment bankers or permit any Representative ofattorneys), the Company agents or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not affiliates to, directly or indirectly, (i) encourage, solicit, initiate, negotiate, knowingly encourage initiate or knowingly facilitate (including by participate in any way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regardingwith, or furnish to provide any person any non-public information with respect to, or take afford any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to the properties, books or records of the Company or the Company any of its Subsidiaries to, or otherwise assist or facilitate, any Person corporation, partnership, person or other entity or group (other than Parent or Sub or any affiliate or associate of Parent or Sub) concerning any Acquisition Transaction (as defined in Section 6.11 herein) or potential Acquisition Transaction; PROVIDED, HOWEVER, that made a Company Takeover Proposal or to any Person that has disclosed to nothing contained in this Agreement shall prohibit the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations with any person or entity that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to makes an unsolicited bona fide Company Takeover Proposal which did not result from a breach proposal to engage in an Acquisition Transaction that the Board of this Section 5.02(a) and which Directors of the Company determines in good faith represents a financially superior transaction for the stockholders of the Company when compared to the Offer and the Merger if, and only to the extent that, the Board determines, of Directors determines in good faith, after consultation with its following the receipt of advice of outside legal counsel and financial advisorscounsel, is, or may that failure to take any such action is reasonably likely to be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect breach by the Board of Directors of its fiduciary duties to the stockholders of the Company to under applicable law; and PROVIDED FURTHER, HOWEVER, that nothing contained in this Agreement shall prohibit the person making such Company Takeover Proposal or its Board of Directors from taking and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose disclosing to the Company’s stockholders, 's stockholders a position with respect to any a tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule pursuant to Rules 14d-9 and Rule 14e-2 14e-2(a) promulgated under the Exchange Act (provided that Act. The Company will promptly notify Parent and Sub if any such information is requested from it or any such negotiations or discussions are sought to be initiated with the Company Board shall not recommend that and will promptly communicate to Parent and Sub the Company’s stockholders tender their shares terms of capital stock any proposal or inquiry and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction, including, in the Company in connection case of written proposals or inquiries, furnishing Parent and Sub with a copy of such tender offer written proposal or exchange unless inquiry (and all amendments and supplements thereto). Subject to the first sentence of this Section 6.02, the Company has complied will and will cause its Subsidiaries, affiliates and their respective officers, directors, employees, representatives and agents to immediately cease and cause to be terminated any existing activities, discussions, or negotiations with Section 5.02(b))any parties other than Parent, Sub or any of their respective affiliates or associates conducted heretofore with respect to any Acquisition Transaction. Except as is required in the exercise of the fiduciary duties of the Board of Directors of the Company as determined in good faith, following the receipt of advice of outside legal counsel, the Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company is a party without Parent's prior written consent and to take all steps deemed necessary or appropriate by Parent to enforce to the fullest extent possible all such agreements.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Dep Corp), Agreement and Plan of Merger (Dep Corp), Agreement and Plan of Merger (Henkel Acquisition Corp Ii)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, Medicus and its subsidiaries and the Company shall cause officers, directors, employees or other agents of Medicus and its and the Company Subsidiaries’ Representatives not tosubsidiaries will not, directly or indirectly, (i) take any action to solicit, initiate, negotiate, knowingly initiate or encourage any Takeover Proposal (defined below) or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect subject to any Company Takeover Proposal or (iii) participate the terms of the immediately following sentence, engage in any discussions or negotiations regardingwith, or furnish disclose any nonpublic information relating to Medicus or any person any information with respect of it subsidiaries to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to the properties, books or records of the Company Medicus or the Company Subsidiaries any of its subsidiaries to, any Person that made a Company Takeover Proposal or to any Person person that has disclosed to the Company advised Medicus that it is contemplating making may be considering making, or that has made, a Company Takeover Proposal; provided, however, thatthat nothing herein shall prohibit Medicus' Board of Directors from taking and disclosing to Medicus' stockholders a position with respect to a tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, prior if an unsolicited Takeover Proposal, or an unsolicited written expression of interest that can reasonably be expected to lead to a Takeover Proposal, shall be received by the Board of Directors of Medicus, then, to the consummation extent the Board of the Merger, Directors of Medicus believes in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company good faith (after consultation with its financial advisor) that such Takeover Proposal which did would, if consummated, result in a transaction more favorable to Medicus' stockholders from a financial point of view than the transaction contemplated by the Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Medicus determines in good faith after consultation with outside legal counsel that it is necessary for the Board of Directors of Medicus to comply with its fiduciary duties to stockholders under applicable law, Medicus and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish in connection therewith information and take such other actions as are consistent with the fiduciary obligations of Medicus' Board of Directors, and such actions shall not result from be considered a breach of this Section 5.02(a) 4.3 or any other provisions of this Agreement, provided that in each such event Medicus notifies QuadraMed of such determination by the Medicus Board of Directors and which provides QuadraMed with a true and complete copy of the Company Board determinesSuperior Proposal received from such third party, if the Superior Proposal is in good faith, after consultation with its outside legal counsel and financial advisors, iswriting, or may reasonably be expected to lead toa complete written summary thereof, a Superior Company Proposalif it is not in writing, and subject provides QuadraMed with all documents containing or referring to compliance non-public information of Medicus that are supplied to such third party; provided further, that (A) the Board of Directors of Medicus has determined, with Section 5.02(c)the advice of Medicus' investment bankers, (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).that
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Quadramed Corp), Agreement and Plan of Reorganization (Quadramed Corp), Agreement and Plan of Reorganization (Quadramed Corp)
No Solicitation. (a) From During the date term of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIAgreement, the Company Stockholders shall not, nor shall it authorize or they permit any Company Subsidiary of their Subsidiaries or any officer or employee of any Stockholder or any of their Subsidiaries to, nor shall it they authorize any director of, or permit any Representative (as defined in the Merger Agreement) of, any Stockholder or any of their Subsidiaries to, and shall instruct each of them not to, except, if any of them is a director of the Company or any Company Subsidiary toStockholder, and as the case may be, as required in order to comply with such individual’s fiduciary duties as a director of the Company shall cause its and or any Stockholder, as the Company Subsidiaries’ Representatives not tocase may be, as specifically permitted by Section 3.06, directly or indirectly, : (i) solicit, initiate, negotiate, knowingly encourage initiate or knowingly facilitate (including by way of furnishing non-public information) induce or encourage the submission of of, any Company Takeover Proposal, Proposal (as hereinafter defined); (ii) enter into any letter of intent or agreement in principle or any agreement providing for, relating to or in connection with, any Company Takeover Proposal or any proposal that could reasonably be expected to lead to a Company Acquisition Transaction (as hereinafter defined); (iii) approve, endorse or recommend any Company Takeover Proposal; (iv) enter into, continue or otherwise participate in any discussions or negotiations with any Person with respect to any Company Takeover Proposal Proposal; or (iiiv) participate in furnish any discussions non-public information regarding the Company or negotiations regarding, or furnish to any person any information with respect of its Subsidiaries to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to the properties, books or and records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal in connection with or in response to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, thatthat nothing contained in this Agreement shall prohibit any Stockholder or its board of directors, directly or indirectly through any of its officers, directors, employees or Representatives, prior to obtaining the consummation Manchester Shareholder Approval, from taking any of the Merger, actions described in addition to Section 5.02(b), the Company may, clauses (iv) and (v) above in response to an any unsolicited bona fide Company Takeover Proposal which did not that the board of directors of Manchester concludes in good faith, after consultation with its outside financial advisors, constitutes or is reasonably expected to result from in, a breach Superior Proposal (as hereinafter defined) if (and only if) (1) the board of this Section 5.02(a) and which the Company Board determines, directors of Manchester concludes in good faith, after consultation with its outside legal counsel counsel, that the failure to take such action with respect to such Company Takeover Proposal would be inconsistent with the exercise by the board of directors of its fiduciary duties to Manchester (including to the shareholders of Manchester) under applicable Law and financial advisors, is(2) prior to furnishing any non-public information to, or may reasonably be expected to lead toentering into discussions or negotiations with, a Superior the Person making such Company Proposal, and subject to compliance with Section 5.02(cTakeover Proposal (the “Third Party”), (x) furnish the Stockholders receive from such Third Party an executed confidentiality agreement with provisions not less favorable to the Stockholders or the Company than those contained in the Confidentiality Agreement (as defined in the Merger Agreement) and (y) the Stockholders provide to Emerald and the Company in accordance with Section 3.04(b) the information required under Section 3.04(b) to be delivered by the Stockholders to Emerald. The Stockholders agree that they and their Subsidiaries shall not enter into any confidentiality agreement with respect any Person subsequent to the date of this Agreement that prohibits the Stockholders from providing information to the Company and Emerald that is required to be provided to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated Emerald under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with this Section 5.02(b))3.04.
Appears in 3 contracts
Samples: Voting Agreement (Misys PLC), Voting Agreement (Eclipsys Corp), Voting Agreement (Allscripts-Misys Healthcare Solutions, Inc.)
No Solicitation. (ai) From the date of this Agreement The Seller and its subsidiaries and their respective officers, directors, employees, representatives, agents or affiliates shall cease any discussion or negotiations with any parties that may be ongoing with respect to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company an Acquisition Proposal (as hereinafter defined). The Seller shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary of its Subsidiaries to, and the Company it shall use its best efforts to cause its and the Company Subsidiaries’ Representatives officers, directors, employees, agents or affiliates not to, directly or indirectly, (iA) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding), or furnish to any person any information with respect to, or knowingly take any other action to facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover ProposalAcquisition Proposal (as defined in this Section 5(h)), or afford access to properties, books (B) participate in any discussions or records of the Company or the Company Subsidiaries to, negotiations regarding any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however, thatthat if the board of directors of the Seller determines in good faith, prior after consultation with, and in part based on the advice of outside counsel, that it is required to do so in order to comply with its fiduciary duties to the consummation of the Merger, in addition to Section 5.02(b)Seller’s stockholders under applicable law, the Company Seller may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Acquisition Proposal, and subject to compliance with Section 5.02(c5(h)(iii), (xX) furnish information with respect to the Company Seller to the person any Person making such Company Takeover unsolicited Acquisition Proposal and its Representatives pursuant to a customary an executed confidentiality agreement with such Person, and (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (yY) participate in discussions or negotiations with regarding such person and its Representatives regarding Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect bona fide proposal or offer from any Person relating to any tender offer merger, consolidation, business combination, sale or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under significant amount of assets outside of the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their Ordinary Course of Business, sale of shares of capital stock in outside of the Company in connection with such Ordinary Course of Business, tender or exchange offer or similar transaction involving the Division, the Division Subsidiaries or the Acquired Assets; provided however, for the avoidance of doubt, that “Acquisition Proposal” shall not include any joint venture agreement entered into by any of Seller, its Napster Division, or those of its Subsidiaries that are included in its Napster Division or any merger, consolidation, business combination, sale of a significant amount of assets, sale of shares of capital stock, tender or exchange unless offer of similar transaction involving Seller or any of those Subsidiaries that are included in Seller’s Napster Division or any Excluded Asset (i) which does not involve any of the Company has complied Acquired Assets and (ii) the consummation of which will in no way prevent or impair in any material respect the Transaction or impair the ability of Buyer to operate the Division in a manner consistent with Section 5.02(b))its operation by Seller prior to the Closing Date.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Sonic Solutions/Ca/), Asset Purchase Agreement (Roxio Inc), Asset Purchase Agreement (Sonic Solutions/Ca/)
No Solicitation. (a) From The Company shall, and shall cause each of its Subsidiaries, and shall cause their respective officers, directors, representatives and agents (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, “Company Representatives”) to, immediately cease any existing discussions or negotiations, if any, with any Third Party that may be ongoing with respect to an Acquisition Proposal and will use its best efforts to cause all Persons other than Parent who have been furnished with confidential information regarding the Company in connection with the solicitation of or discussions regarding an Acquisition Proposal within the 12 months prior to the date hereof promptly to return or destroy such information. The Company agrees not to, and to cause its Subsidiaries not to, release any third party from the confidentiality and stand still provisions of this Agreement any agreement to which the Effective TimeCompany or its Subsidiaries is a party or becomes a party, and will immediately take all steps necessary to terminate any approval that may have heretofore been given under any such provisions authorizing any Person to make an Acquisition Proposal, unless this Agreement the Company Board reasonably determines in good faith that such Acquisition Proposal is, or is terminated earlier pursuant reasonably likely to Article VIIIbe, the a Superior Proposal. The Company shall not, nor and shall it not authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company of its Subsidiaries or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not Representative to, directly or indirectly, (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover an Acquisition Proposal, (ii) furnish or disclose to any Third Party non-public information with respect to an Acquisition Proposal, (iii) negotiate or engage in substantive discussions with any Third Party with respect to an Acquisition Proposal or (iv) enter into any agreement (whether or not binding) or agreement in principle with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover an Acquisition Proposal; provided, however, that, that at any time prior to the consummation of the Merger, in addition to Section 5.02(b), the Company mayOffer, in response to an unsolicited a bona fide written Acquisition Proposal that was not solicited by the Company, its Subsidiaries or any Company Takeover Proposal which did not result from a breach of this Section 5.02(a) Representative and which the Company Board determines, reasonably determines in good faith, after consultation consulting with its outside financial advisors and legal counsel and financial advisorscounsel, isconstitutes, or may is reasonably be expected likely to lead toconstitute, a Superior Company Proposal, and subject to compliance with Section 5.02(c), the Company may (xA) furnish information with respect to the Company and its Subsidiaries to the person Person making such Company Takeover Acquisition Proposal (and its Representatives pursuant to a customary confidentiality agreement officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) and (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (yB) participate in discussions or negotiations with with, and provided draft documents and agreements to, the Person making such person Acquisition Proposal (and its Representatives officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding any such Acquisition Proposal, if (prior to furnishing such information to, or entering into such discussions or negotiations with, such Person) the Company Takeover Proposal (A) provides reasonable notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person, (B) provides Parent with all information to be provided to such Person which Parent has not previously been provided, and (zC) take, and disclose receives from such Person an executed confidentiality agreement reasonably satisfactory to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend with terms, as a whole, that are no less favorable to the Company’s stockholders tender their shares of capital stock Company than those contained in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Confidentiality Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (American Medical Systems Holdings Inc), Agreement and Plan of Merger (Laserscope), Agreement and Plan of Merger (American Medical Systems Holdings Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company Seller shall not, nor and shall it authorize or permit any Company Subsidiary todirect each of its subsidiaries and their respective officers, nor shall it authorize or permit any Representative ofemployees, the Company or any Company Subsidiary to, representatives and the Company shall cause its and the Company Subsidiaries’ Representatives agents not to, directly or indirectly, induce, solicit or initiate discussions or negotiations with, or provide any non-public information to, any corporation, partnership, person or other entity or group concerning any merger, sales of substantial assets, sales of shares of capital stock or similar transactions involving Seller or any subsidiary or division of Seller if such transaction involves the Business or any of the Assets (i"Alternative Proposal") solicitor enter into any agreement with respect thereto; provided that, initiateprior to the receipt of the Seller Shareholders' Approval and upon receipt of advice of Seller's legal counsel that such provision, negotiatediscussion or negotiation is required pursuant to fiduciary obligations under applicable law, knowingly encourage or knowingly facilitate Seller may provide information (including by way of furnishing non-public information, but only pursuant to a confidentiality agreement in customary form, including customary standstill provisions), and enter into (or induce) discussions or negotiations with, any person who has made a bona fide unsolicited Alternative Proposal in respect of such a transaction which the submission Board of Directors of Seller in good faith determines is a better offer than the transactions contemplated by this Agreement. Seller will promptly communicate to Purchaser the terms of any Company Takeover ProposalAlternative Proposal (including the maker thereof) which it may receive in respect of all such transactions prohibited by the foregoing and keep Purchaser informed of the status and material information with respect to such discussions or negotiations. Nothing in this Section 9(d) shall (x) permit Seller to terminate this Agreement (except as specifically provided in Section 17, (iiy) permit Seller to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, Seller shall not enter into any Company Takeover Proposal agreement with any person or (iii) participate group that provides for, or in any discussions or negotiations regardingway facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to affect any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated other obligation of Seller under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))this Agreement.
Appears in 3 contracts
Samples: Agreement of Purchase (Arrow Electronics Inc), Agreement of Purchase (Arrow Electronics Inc), Agreement of Purchase (Arrow Electronics Inc)
No Solicitation. (a) From Each Stockholder, solely in its capacity as a stockholder of the date of this Agreement to the Effective TimeCompany, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor and shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, direct its Representatives involved in the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives Contemplated Transactions not to, directly or indirectly, : (i) directly or indirectly initiate, solicit, initiate, negotiate, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public informationproviding information or taking any other action) any inquiries, proposals or offers, or the submission making of any Company Takeover submission or announcement of any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to any Acquisition Proposal, (ii) directly or indirectly engage in, enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish with any Person with respect to any person Acquisition Proposal, (iii) provide any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to the business, properties, assets, books or records of the Company or the Company Subsidiaries to, any Person that made a (other than Parent, Purchaser, or any designees of Parent or Purchaser) in connection with any Acquisition Proposal, (iv) enter into any agreement in principle, letter of intent, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement or other similar instrument relating to an Acquisition Proposal, (v) recommend any other holder of Company Takeover Common Stock to not tender shares of Company Common Stock in the Offer or (vi) resolve or agree to do any of the foregoing. Each Stockholder shall, and shall direct its Representatives involved in the Contemplated Transactions to, immediately cease any solicitation, discussions, or negotiations with any Person (other than Parent, Purchaser, or any designees of Parent or Purchaser) with respect to any Acquisition Proposal or potential Acquisition Proposal that could reasonably be expected to any Person that has disclosed lead to an Acquisition Proposal. Notwithstanding the Company that it is contemplating making a Company Takeover Proposal; providedforegoing, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company such Stockholder or its Representative may, solely in response to an unsolicited bona fide Company Takeover Proposal which inquiry or proposal that did not result from a material breach of this Section 5.02(a4.6, inform a Person that has made or, to the Knowledge of the Stockholder or its Representative (as applicable), is considering making an Acquisition Proposal of the restrictions of this Section 4.6 and of the Merger Agreement. For clarity, if such Stockholder is a venture capital or private equity investor, the term “Representative” (a) shall include any general partner of such Stockholder that is still affiliated with such Stockholder, but (b) shall exclude (i) any limited partner, (ii) any general partner that is no longer affiliated with such Stockholder, and which the Company Board determines(iii) any employees or other Representatives, in good faitheach case of clauses (i) to (iii), after consultation with its outside legal counsel who do not have actual knowledge of the Contemplated Transactions. Each Stockholder acknowledges and financial advisorsagrees that, isfor purposes of determining whether a breach of this Section 4.6 has occurred, or may reasonably the actions of such Stockholder’s directors and Representatives acting in their authorized capacities on behalf of such Stockholder shall be expected deemed to lead to, a Superior Company Proposalbe the actions of such Stockholder, and subject to compliance with such Stockholder shall be responsible for any breach of this Section 5.02(c), (x) furnish information with respect to the Company to the person making 4.6 by its directors and Representatives acting in their authorized capacities on behalf of such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Stockholder.
Appears in 3 contracts
Samples: Tender and Support Agreement (Akouos, Inc.), Tender and Support Agreement (Akouos, Inc.), Tender and Support Agreement (Akouos, Inc.)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company Each Stockholder shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary cause such Stockholder’s Controlled Affiliates not to, and shall use reasonable best efforts to cause the Company shall cause its Representatives of such Stockholder and the Company Subsidiaries’ Representatives such Stockholder’s Controlled Affiliates not to, directly or indirectly, : (i) solicit, initiate, negotiate, or knowingly encourage or knowingly facilitate the submission or announcement of any Acquisition Proposal; (including by way of furnishing ii) furnish any non-public informationinformation regarding the Company to any third party in connection with an Acquisition Proposal; (iii) the submission of engage in or otherwise facilitate discussions or negotiations with any Company Takeover Proposal, (ii) enter into any agreement third party with respect to any Company Takeover Acquisition Proposal; (iv) adopt, approve, endorse or recommend or publicly propose to adopt, approve endorse or recommend, any Acquisition Proposal or enter into any letter of intent, support agreement or similar document, agreement, commitment or agreement in principle relating to or facilitating an Acquisition Proposal; (iiiv) participate become a member of a “group” (as defined in Section 13(d)(3) under the Exchange Act) with respect to any voting securities of the Company for the purpose of opposing, discouraging or competing with or taking any actions inconsistent with the transactions contemplated by this Agreement or the Merger Agreement or (vi) agree to do any of the foregoing. Each Stockholder shall, and shall cause such Stockholder’s Controlled Affiliates and shall use reasonable best efforts to cause the Representatives of such Stockholder and such Stockholder’s Controlled Affiliates to, immediately cease and cause to be terminated any existing solicitations of, or discussions or negotiations regardingwith, or furnish any third party relating to any person any information with respect toAcquisition Proposal. Notwithstanding anything to the contrary set forth in this Agreement, or take any other action if and only if (i) the Company, to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records extent permitted by Section 5.2 of the Company or the Company Subsidiaries toMerger Agreement, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate participating in discussions or negotiations with a Person who has submitted an Acquisition Proposal (such person Person, an “Engaged Bidder”), (ii) such Stockholder’s negotiations and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to discussions with such Engaged Bidder are in conjunction with the Company’s stockholders, a position discussions and negotiations with respect to such Engaged Bidder and (iii) such Stockholder does not take any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided action that the Company Board shall not recommend that would be prohibited from taking pursuant to Section 5.2 of the Company’s stockholders tender their shares of capital stock Merger Agreement, each Stockholder may (x) participate in discussions and negotiations with such Engaged Bidder and (y) privately (except as required by applicable Law) discuss and privately (except as required by applicable Law) confirm to the Company and such Engaged Bidder the willingness of such Stockholder and such Stockholder’s Controlled Affiliates to sign a voting agreement in connection with such tender offer or exchange unless Acquisition Proposal in the Company has complied with event of any termination of the Merger Agreement pursuant to Section 5.02(b))8.1(f) of the Merger Agreement. For purposes of this Section 4.1, “Acquisition Proposal” shall have the meaning ascribed to such term in the Merger Agreement but shall also include any Transfer of any of such Stockholder’s Covered Shares other than a Permitted Transfer.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (M.D.C. Holdings, Inc.), Voting and Support Agreement (Mandarich David D), Voting and Support Agreement (Mizel Larry A)
No Solicitation. (a) From Seller shall not and shall cause the date Seller Subsidiaries and the respective officers, directors, employees, investment bankers, financial advisors, attorneys, accountants, consultants, affiliates and other agents of this Agreement to Seller and the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIISeller Subsidiaries (collectively, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives “Seller Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, negotiate, knowingly encourage induce or knowingly encourage, or take any action to facilitate (including by way of furnishing non-public information) the submission of making of, any Company Takeover inquiry, offer or proposal which constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, ; (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or furnish otherwise afford access, to any person (other than Buyer) any information or data with respect toto Seller or any of the Seller Subsidiaries or otherwise relating to an Acquisition Proposal; (iii) release any person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which Seller is a party; (iv) enter into any agreement, agreement in principle or letter of intent with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle or letter of intent relating to an Acquisition Proposal; or (v) take any action (A) other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of than as contemplated by this Agreement in connection with the Merger, in addition to Section 5.02(b), render the Company may, in response Rights issued pursuant to the terms of the Seller Rights Agreement inapplicable to an unsolicited bona fide Company Acquisition Proposal or the transactions contemplated thereby, to exempt or exclude any person from the definition of an Acquiring Person (as defined in the Seller Rights Agreement) under the terms of the Seller Rights Agreement or to redeem the Rights or allow the Rights to expire prior to their expiration date, or (B) to render the provisions of any Takeover Proposal which did Laws inapplicable to any person (other than Buyer or the Buyer Subsidiaries) or group in connection with any Acquisition Proposal. Any violation of the foregoing restrictions by any of the Seller Representatives, whether or not result from such Seller 70 Representative is so authorized and whether or not such Seller Representative is purporting to act on behalf of Seller or otherwise, shall be deemed to be a breach of this Section 5.02(a) Agreement by Seller. Seller and which the Company Board determinesSeller Subsidiaries shall, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead shall cause each of the Seller Representatives to, a Superior Company Proposalimmediately cease and cause to be terminated any and all existing discussions, negotiations, and subject to compliance communications with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position persons with respect to any tender offer existing or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))potential Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Oak Hill Financial Inc), Agreement and Plan of Merger (Wesbanco Inc)
No Solicitation. (a) From the date of this Agreement The Company agrees that, prior to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company it shall not, nor and shall it not authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company Subsidiaries or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not toof their Representatives, directly or indirectly, (i) to solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constituteswith respect to any merger, consolidation or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of other business combination involving the Company or the Company Subsidiaries toor acquisition of 10% or more of the assets or capital stock of the Company and the Company Subsidiaries taken as a whole (a "TAKEOVER PROPOSAL") or negotiate, explore or otherwise engage in substantive discussions with any Person that made a Company (other than Buyers) with respect to any Takeover Proposal (it being understood that the passive receipt of communications from third parties shall not be deemed participation in discussions or negotiations) or enter into any agreement, arrangement or understanding requiring it to any Person abandon, terminate or fail to consummate the Merger; PROVIDED, HOWEVER, that has disclosed if the Board of Directors of the Company and the Special Committee determine in good faith, after consultation with independent outside legal counsel, that prior to obtaining the Requisite Company Vote, it is necessary to do so in order to act in a manner consistent with its fiduciary duties to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b)Company's stockholders under applicable law, the Company may, prior to obtaining the Requisite Company Vote, in response to an unsolicited bona fide Company a Takeover Proposal Proposal, which proposal is supported by fully committed financing, was not solicited by it and which did not otherwise result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal5.8, and subject to providing prior written notice of its decision to take such action to Buyers and compliance with the other requirements of this Section 5.02(c)5.8, (xi) furnish information with respect to the Company and the Company Subsidiaries to the person any Person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms as determined in good faith by the Company based on the advice of its independent outside legal counsel) and conditions no less favorable than those in the Confidentiality Agreement), (yii) participate in discussions or negotiations with regarding such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Three Cities Fund Ii Lp), Agreement and Plan of Merger (Three Cities Fund Ii Lp)
No Solicitation. (a) Each of Parent and the Company shall immediately cease any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal and, if applicable, shall seek to have returned to the Company or Parent as applicable any information and materials that have been provided in any such discussions or negotiations and shall immediately terminate all physical and electronic dataroom access previously granted to any such Person or its Representatives. From and after the date hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement to the Effective Timein accordance with Article VII, unless this Agreement is terminated earlier pursuant to Article VIII, each of the Company and Parent shall not, nor shall it authorize or permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or permit any Representative ofof its officers, the Company directors or employees or any Company Subsidiary toAffiliate, and the Company shall cause investment banker, financial advisor, attorney, accountant or other Representative retained by it or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate facilitate, any inquiries inquiry or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or afford access other agreement, arrangement or understanding relating to properties, books or records any Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into pursuant to subsection (A) of the Company proviso of this sentence) or the Company Subsidiaries to(iii) enter into, continue or otherwise participate in any Person that made a Company Takeover Proposal discussions or to negotiations regarding any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, thatthat if, prior to obtaining the consummation Company Stockholder Approval (in the case of the Merger, Company) or the Parent Stockholder Approval (in addition to Section 5.02(bthe case of Parent), following the receipt of a Superior Proposal or a Takeover Proposal that the Company mayBoard or Parent Board, as applicable, determines in response good faith is reasonably expected to an lead to a Superior Proposal and that in either case was unsolicited bona fide Company Takeover Proposal which did and made after the date of this Agreement in circumstances not result from otherwise involving a breach of this Section 5.02(a) and which Agreement, the Company Board determinesor the Parent Board, as applicable, determines in good faith, after consultation with its outside legal counsel and financial advisorscounsel, isthat a failure to take such action with respect to such Takeover Proposal would be inconsistent with the exercise of its fiduciary duties to the Company’s stockholders or Parent’s stockholders, as applicable, under applicable Law, the Company or may reasonably be expected Parent, as applicable, may, in response to lead to, a Superior Company such Takeover Proposal, and subject to compliance with Section 5.02(c5.4(c), (xA) furnish information with respect to the Company or Parent, as applicable, to the person party making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms an “Acceptable Confidentiality Agreement”) that contains confidentiality and conditions no standstill provisions not less favorable to the Company or Parent, as the case may be, than those contained in the Confidentiality Agreement)Agreements; provided that (x) such confidentiality agreement shall permit the provision of all information to Parent and the Company, as applicable, that is contemplated or required by this Section 5.4 to be provided to Parent or the Company, as applicable, and (y) participate such confidentiality agreement shall include a standstill, except that, (i) such standstill need not prohibit the Person making such Takeover Proposal from making a Takeover Proposal to the Company Board or Parent Board, as applicable, in a confidential manner and (ii) such confidentiality agreement need not include a standstill to the extent that the Person making such Alternative Acquisition Proposal has commenced a tender offer or exchange offer incorporating an Takeover Proposal, and (B) engage in discussions or negotiations with such person and its Representatives party regarding any such Takeover Proposal. In addition, notwithstanding anything in this Agreement to the contrary, following the receipt of a Takeover Proposal, the Company Board or Parent Board, as applicable, may contact the Person or group of Persons who has made such Takeover Proposal solely for the purpose of seeking clarification of the terms and conditions thereof and the Company or Parent, as applicable, shall promptly provide a summary of such clarifications to the other Party. It is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of each of the Company or Parent, as applicable, or any of their respective Subsidiaries shall be deemed to be a breach of this Section 5.4(a) by the Company or Parent, as applicable. Prior to the termination of this Agreement, except in connection with a concurrent termination of this Agreement pursuant to Section 7.1(c)(iv) or Section 7.1(d)(iv), but subject to the concurrent payment of the applicable Company Termination Fee or Parent Termination Fee, as the case may be, (1) neither the Company nor Parent shall take any action to exempt any Person from the restrictions on “business combinations” or any similar provision contained in any applicable Takeover Law or the Constituent Documents of the Company or Parent, as applicable, otherwise cause such restrictions not to apply, and (z2) take, and disclose to the Company’s stockholders, a position with respect to any tender offer Company shall not (x) terminate (or exchange offer by a third party or amend or withdraw such position permit the termination of (except in accordance with Rule 14d-9 its terms and Rule 14e-2 promulgated under the Exchange Act (provided that not related to a Takeover Proposal)), waive or amend the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).Rights Agreement,
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Health Net Inc), Agreement and Plan of Merger (Centene Corp)
No Solicitation. The Shareholder hereby agrees that during the term of this Agreement (as contemplated in Section 8) the Shareholder shall not, and shall not knowingly instruct any investment banker, financial advisor, attorney, accountant or other representative retained by it to (on its behalf), (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiatesolicit, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement inquiries or proposals with respect to any Company Takeover Acquisition Proposal, (b) engage, communicate or participate in any negotiations with any person (other than Purchaser, Merger Subs or the Company) concerning any Acquisition Proposal after becoming aware that the person has made or is considering making an Acquisition Proposal or (iiic) participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are used in any discussions the rules of the SEC) or negotiations regardingpowers of attorney or similar rights to vote, or furnish knowingly and intentionally seek to influence any person to vote, any information with respect to, shares of Company Capital Stock (x) against the adoption or take any other action to facilitate any inquiries approval of the Merger Agreement and the Mergers or the making (y) in favor of any Acquisition Proposal or proposal that constitutes, or may would reasonably be expected to lead to, any Company Takeover to an Acquisition Proposal, unless in the case of clause (c) above, the Shareholder is a director of the Company’s Board of Directors or afford access an officer of the Company and the Company’s Board of Directors has effected a Recommendation Change (as defined in the Merger Agreement), in accordance with the terms of the Merger Agreement, and in such case, the Shareholder’s activities are solely in his or her capacity as a director or officer of the Company. The Shareholder agrees immediately to propertiescease and cause to be terminated any activities, books discussions or records negotiations conducted before the date of this Agreement with any persons (other than the Company, Purchaser, Merger Subs and any of their respective representatives) with respect to any Acquisition Proposal and will take all reasonably necessary steps to inform any investment banker, financial advisor, attorney, accountant or other representative retained by the Shareholder in connection with the Mergers of the obligations undertaken by the Shareholder pursuant to this Section 5. Nothing contained in this Section 5 shall prevent any officer of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation member of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer Board of Directors from discharging his or exchange offer by a third party her fiduciary duties solely in his or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that her capacity as an officer of the Company Board shall not recommend that or a member of the Company’s stockholders tender their shares Board of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Directors.
Appears in 2 contracts
Samples: Support Agreement (TriState Capital Holdings, Inc.), Support Agreement (T-Viii Pubopps Lp)
No Solicitation. (a) From the date of this Agreement to the Effective TimeOrthAlliance agrees that it and its Subsidiaries, unless this Agreement is terminated earlier pursuant to Article VIIIofficers, the Company directors, employees, representatives, consultants, investment bankers, attorneys, accountants and agents shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) encourage, solicit, initiate, negotiatefacilitate, knowingly encourage entertain or knowingly facilitate (including by way of furnishing non-public information) the submission of accept any Company Takeover Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Acquisition Proposal or enter into any arrangement, understanding or agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement, (iii) propose or make any Acquisition Proposal to any Person other than OCA and OCA Merger Sub, (iv) participate in any way in discussions or negotiations regardingwith, or furnish to any person or disclose any information to, any Person (other than OCA and OCA Merger Sub) in connection with or with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal, or afford access (v) authorize or permit its Subsidiaries, officers, directors, employees, representatives, consultants, investment bankers, attorneys, accountants and agents to properties, books or records do any of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposalforegoing; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company maythat OrthAlliance, in response to an unsolicited unsolicited, bona fide Company Takeover Proposal which did not result from a breach fide, written Acquisition Proposal, may, after giving notice to OCA and without limiting OrthAlliance's obligations under Section 8.4, take one or more of this Section 5.02(a) and which the Company following actions if the Board determines, of Directors of OrthAlliance determines in good faith, after consultation with its outside legal counsel and financial advisors, is, faith that the failure to take such action or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), actions would violate the fiduciary obligations of such Board of Directors under applicable law: (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y1) participate or engage in such discussions or negotiations with the Person making such person Acquisition Proposal regarding such unsolicited, bona fide, written Acquisition Proposal, (2) provide or cause to be provided information to the Person making such Acquisition Proposal (pursuant to a confidentiality agreement with terms not more favorable to such third party than the terms of the Confidentiality Agreement between OrthAlliance and its Representatives regarding any Company Takeover Proposal OCA), and (z3) authorize and permit its officers, directors, employees, representatives, investment bankers, attorneys, accountants, financial advisors and agents to take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Orthalliance Inc), Agreement and Plan of Merger (Orthodontic Centers of America Inc /De/)
No Solicitation. (a) From the date of this Agreement The Company will immediately cease any discussions or negotiations with any parties that may be ongoing with respect to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIan Acquisition Proposal. Except as explicitly permitted hereunder, the Company shall not, nor and shall it not authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, of the Company Subsidiaries or any Company Subsidiary toof its or their respective officers, and the Company shall cause its and the Company Subsidiaries’ Representatives not todirectors or employees or any investment banker, financial advisor, attorney, accountant or other representative, directly or indirectly, to, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover constitutes an Acquisition Proposal, or afford access to properties, books (ii) participate in any discussions or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover negotiations regarding an Acquisition Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which that if the Company Board determines, in good faith, after consultation receiving advice from outside counsel, that failing to take such action would be inconsistent with its outside legal counsel and financial advisorsfiduciary duties to the Company’s shareholders under applicable law, isthe Company, or may in response to an unsolicited bona fide written Acquisition Proposal that would reasonably be expected to lead to, result in a Superior Company Proposal, prior to the date on which the shareholders of the Company adopt this Agreement and subject to compliance with only if the Company is not in breach of its obligations under this Section 5.02(c)4.10, may (xA) furnish non-public information with respect to the Company to the person making Person who made such Company Takeover Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have on terms and conditions no less more favorable to such Person than the Confidentiality Agreement; provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to the person who made such Acquisition Proposal than those in the Confidentiality Agreement), the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be, and (yB) may participate in discussions or negotiations with regarding such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Precision Castparts Corp), Agreement and Plan of Merger (SPS Technologies Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative officer, director, employee or affiliate of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public informationproviding any information not provided generally to the public) any prospective purchaser or the submission of any Company Takeover ProposalProposal (as defined in Section 5.02(e)), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate any inquiries inquiries, offers, or the making of proposals, or make any proposal other efforts or attempts that constitutesconstitute, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to propertiesengage in any discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in, books or records of the Company facilitate any such inquiries, offers, proposals, discussions or the Company Subsidiaries tonegotiations, any Person that made (ii) accept a Company Takeover Proposal or enter into any agreement or agreement in principle with respect to any Person that has disclosed to Company Takeover Proposal or enter into any agreement or agreement in principle requiring the Company that it is contemplating making a to abandon, terminate or fail to consummate the Transactions or breach its obligations under this Section 5.02, or (iii) furnish to any person any information with respect to, any Company Takeover Proposal; provided, however, that, that if at any time prior to the consummation of the Merger, in addition to Section 5.02(b), obtaining the Company mayStockholder Approval, in response to an unsolicited bona fide (i) the Company has otherwise complied with its obligations under this Section 5.02 and the Company has received a Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which person that the Company Board determinesdetermines in good faith to be bona fide, (ii) the Company Board determines in good faith, after consultation with its outside legal counsel and independent financial advisors, is, that such Company Takeover Proposal constitutes or may could reasonably be expected to lead to, constitute a Superior Company Proposal, and (iii) after consultation with its outside counsel, the Company Board determines in good faith that taking such action is necessary for the Company Board to comply with its fiduciary duties under applicable Law, then in response to such Company Takeover Proposal, and subject to compliance with Section 5.02(c), the Company may (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (that contains provisions which shall have terms and conditions are no less favorable to the Company than those contained in the Confidentiality Agreement), Agreement and (y) participate in discussions or negotiations (including solicitation of a revised Company Takeover Proposal from such person) with such person and its Representatives regarding such Company Takeover Proposal. Notwithstanding anything contained in the previous sentence, prior to making the determination and taking any actions described in clauses (i), (ii) and (iii) of the proviso to the previous sentence, the Company may engage in discussions (solely to clarify the terms of such Company Takeover Proposal) with the person making a Company Takeover Proposal and (z) takein order to determine whether such Company Takeover Proposal constitutes or could reasonably be expected to constitute a Superior Company Proposal. The Company shall, and disclose shall cause its Representatives to, promptly provide to Parent any non-public information concerning the Company’s stockholdersCompany or any Company Subsidiary that is provided to any person if such information was not previously provided to Parent. The Company shall, and shall cause its Representatives to, cease immediately all discussions and negotiations taking place as of the date of this Agreement regarding any proposal that constitutes, or may reasonably be expected to lead to, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Specialty Laboratories Inc), Agreement and Plan of Merger (Ameripath Inc)
No Solicitation. (a) From the date Each of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, Parent and the Company shall cause its and their respective Subsidiaries will not, and Parent and the Company will direct and use their respective best efforts to cause their and their Subsidiaries’ Representatives ' respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal (including without limitation by amending, or may reasonably be expected to lead togranting any waiver under, the Parent Rights Agreement or the Company Rights Agreement, as applicable) or any Company Takeover Proposalinquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto, or disclose any nonpublic information or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal has made, or to such party's knowledge, is considering making, any Person Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of Parent or the Company from complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal; provided that has disclosed the Board of Directors of such party shall not recommend that the stockholders of such party tender their shares in connection with a tender offer or exchange offer except to the Company that it is contemplating making extent that, after receiving a Company Takeover Superior Proposal; provided, howeversuch Board of Directors of such party determines in its good faith judgment, after receiving the advice of outside legal counsel, that, in light of such Superior Proposal, failure to make such a recommendation would be reasonably likely to be inconsistent with fulfilling the fiduciary duties of the Board of Directors to such party's stockholders under applicable law and such party shall have complied with the procedure set forth in Section 5.2 or 6.4, to the extent applicable. Notwithstanding anything to the contrary in this Agreement, prior to the consummation date of approval of this Agreement and the MergerMerger by the stockholders of Parent or the Company, in addition to Section 5.02(b)as applicable, Parent or the Company maymay (A) furnish information and access to a third party, but only in response to a request for information or access, to any Person making an unsolicited bona fide Acquisition Proposal to the board of directors of Parent or the Company, as applicable, after the date hereof which was not knowingly encouraged, solicited or initiated by Parent or the Company, as applicable, or any of its affiliates or any director, employee, representative or agent of Parent or the Company, as applicable, or any of its respective Subsidiaries (including, without limitation, any investment banker, attorney or accountant retained by Parent or the Company Takeover Proposal which did not result from a breach or any of its Subsidiaries) on or after the date hereof and (B) may participate in discussions and negotiate with such Person concerning any such Acquisition Proposal, if and only if, in any such case set forth in clause A or B of this Section 5.02(aparagraph, (i) and which the Company Board determinesof Directors of Parent or Company, as applicable, concludes in good faith, after consultation with its receipt of the advice of a financial advisor of nationally recognized reputation and outside legal counsel and financial advisorscounsel, is, or may that such Acquisition Proposal is reasonably be expected likely to lead to, result in a Superior Proposal with respect to Parent or the Company, as applicable, (ii) the Company Proposalor Parent, as applicable, complies with all of its obligations under this Agreement, and subject (iii) the board of directors of Parent or the Company, as applicable, receives from the Person making such an Acquisition Proposal an executed confidentiality agreement the material terms of which are (without regard to compliance with Section 5.02(c), the terms of such Acquisition Proposal) in all material respects (x) furnish information with respect no less favorable to the Company or Parent, as applicable, and (y) no less restrictive to the person Person making such Company Takeover Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those contained in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Texaco Inc), Agreement and Plan of Merger (Chevron Corp)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company Seller shall not, not nor shall it authorize (and shall use its best efforts not to permit) any Affiliate, officer, director, manager or permit any Company Subsidiary to, nor shall it authorize or permit any Representative employee of, the Company or any Company Subsidiary toinvestment banker, and the Company shall cause its and the Company Subsidiaries’ Representatives not toattorney or other advisor or representative (collectively, directly or indirectly, "REPRESENTATIVES") of Seller to (i) solicitsolicit or initiate any inquiries relating to, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of of, any Company Takeover Acquisition Proposal, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any Person any non-public information or data with respect to or provide access to the properties of Seller, or take any other action in order to facilitate the making of any proposal that constitutes an Acquisition Proposal or (iii) enter into any agreement with respect to any Company Takeover Acquisition Proposal or (iii) participate in approve or resolve to approve any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however, that, prior that notwithstanding anything to the consummation of the Mergercontrary contained in this Agreement, nothing contained in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) 5.04 or any other provision hereof shall prohibit Seller or Seller's board of directors from taking and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected disclosing to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, Seller's stockholders a position with respect to any a tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule pursuant to Rules 14d-9 and Rule 14e-2 promulgated under the Exchange Act, provided that Seller may not, except as permitted by Section 5.04(b), withdraw or modify, or propose to withdraw or modify, the Seller Board Recommendation or approve or recommend, or propose to approve or recommend any Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal. Upon execution of this Agreement, Seller will immediately cease any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. Notwithstanding the foregoing, prior to the Closing Date, Seller may furnish nonpublic information or data concerning, or provide access to, its businesses, properties or assets to any Person or "group" (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group concerning an Acquisition Proposal, provided that such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall be no more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit Seller to disclose to Parent all of the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with information required to be disclosed by Seller to Parent by this Section 5.02(b)).5.04) if:
Appears in 2 contracts
Samples: Asset Purchase Agreement (Animas Corp), Asset Purchase Agreement (Cygnus Inc /De/)
No Solicitation. (a) From The Company shall, and shall direct and cause its officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Company Takeover Proposal (as defined below) and immediately request that all confidential information furnished by or on behalf of the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company be returned. The Company shall not, nor shall it authorize or permit any Company Subsidiary of its subsidiaries to, nor shall it authorize or permit any Representative ofof its officers, the Company directors or employees or any Company Subsidiary toinvestment banker, and the Company shall cause financial advisor, attorney, accountant or other representative retained by it or any of its and the Company Subsidiaries’ Representatives not tosubsidiaries, directly or indirectly, to (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to), or take any other action knowingly designed or reasonably likely to facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to (ii) participate in any Person that has disclosed to the Company that it is contemplating making a discussion or negotiations regarding any Company Takeover Proposal; provided, however, thatthat if, at any time prior to the consummation Company shareholder meeting with respect to the transactions contemplated hereby, the Board of Directors of the MergerCompany determines in good faith, based on the advice of its outside legal counsel, that the failure to do so would result in addition a breach of its fiduciary duties to Section 5.02(b)the Company's shareholders under applicable Law, the Company may, in response to an unsolicited bona fide a Company Takeover Superior Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal(as defined below), and subject to compliance with Section 5.02(c4.8(c), (x) furnish information with respect to the Company to the any person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms as determined by the Company after consultation with outside legal counsel) and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with regarding such person and its Representatives regarding any Company Takeover Proposal for purposes of determining in good faith if such Company Takeover Proposal is a Company Superior Proposal. "Company Takeover Proposal" means any inquiry, proposal or offer from any person relating to (1) any direct or indirect acquisition or purchase of assets representing 20% or more of the consolidated assets of the Company and the Company Subsidiaries, (z2) takeany issuance, and disclose sale, or other disposition of (including by way of merger, consolidation, business combination, share exchange, joint venture, or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing 20% or more of the voting power of the Company, (3) any tender offer, exchange offer or other transaction in which, if consummated, any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Securities Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Securities Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership, of, 20% or more of the outstanding voting capital stock of the Company, or, (4) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Company Subsidiary, other than the transactions contemplated by this Agreement. Notwithstanding any provision to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).contrary
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Berman Lyle), Agreement and Plan of Merger (Schussler Steven W)
No Solicitation. (a) From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIISection 5.8, the Company shall will not, nor shall will it authorize or permit any Company Subsidiary to, nor shall will it authorize or permit any Representative officer, director or employee of the Company or any Company Subsidiary and each investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, Acquisition Proposal (as hereinafter defined) or (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate facilitate, an Acquisition Proposal or any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover an Acquisition Proposal; PROVIDED, or afford access HOWEVER, that subject to properties, books or records of compliance by the Company or with the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation provisions of the Merger, in addition to Section 5.02(b5.8(b), the Company mayCompany's Board of Directors may furnish information to, in response to or enter into discussions or negotiations with, any person that makes an unsolicited bona fide Company Takeover written Acquisition Proposal which did not result from a breach if, and only to the extent that (A) the Company's Board of this Section 5.02(a) and which the Company Board determines, in good faithDirectors, after consultation with its outside legal counsel and financial advisorscounsel, determines in good faith that such action is legally advisable for the Company's Board of Directors to comply with its fiduciary duties to the Company's stockholders under applicable Law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, or may in the good faith judgment of the Company's Board of Directors after consultation with a nationally recognized financial advisor, reasonably be expected to lead tocapable of being financed, a Superior Company (C) the Company's Board of Directors determines in good faith that such Acquisition Proposal, and subject based upon such matters as it deems relevant including after consultation with a nationally recognized financial advisor, would, if consummated, result in a transaction more favorable to compliance with Section 5.02(cthe Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (D) prior to taking such action, the Company (x) furnish information with respect provides reasonable notice to Parent to the Company to the person making effect that it is taking such Company Takeover Proposal action and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with receives from such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position an executed confidentiality agreement in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))reasonably customary form.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Metromedia Fiber Network Inc), Agreement and Plan of Merger (Metromedia Fiber Network Inc)
No Solicitation. (a) From and after the date of this Agreement to until the Effective Time, unless Time or termination of this Agreement is terminated earlier pursuant to Article VIIIVII, the Company shall and its subsidiaries will not, nor shall it will they authorize or permit any Company Subsidiary toof their respective officers, nor shall it authorize directors, affiliates or permit any Representative of, the Company employees or any Company Subsidiary toinvestment banker, and the Company shall cause its and the Company Subsidiaries’ Representatives not attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) induce the making, submission or announcement of any Company Takeover ProposalAcquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may would reasonably be expected to lead to, any Company Takeover Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, (iv) approve, endorse or afford access to properties, books or records of the Company or the Company Subsidiaries to, recommend any Person that made a Company Takeover Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Person that has disclosed to the Company that it is contemplating making a Company Takeover ProposalAcquisition Transaction (as defined below); provided, however, that, prior that nothing contained in this Section 5.4 shall prohibit the Board of Directors of Company from (i) complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to the consummation of the Merger, in addition to Section 5.02(b), the Company may, a tender or exchange offer or (ii) in response to an unsolicited unsolicited, bona fide Company Takeover written Acquisition Proposal which did not result from that Company's Board of Directors reasonably concludes constitutes a breach Superior Offer (as defined below), engaging in discussions or participating in negotiations with and furnishing information to the party making such Acquisition Proposal to the extent (A) the Board of this Section 5.02(a) and which Directors of the Company Board determines, determines in good faith, faith after consultation with its outside legal counsel and financial advisorsthat failure to take such action would be inconsistent with its fiduciary obligations under applicable law, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (B) (x) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such party, Company gives Parent written notice of Company's intention to furnish nonpublic information to, or enter into discussions or negotiations with, such party and (y) Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party by or on behalf of Company, and (C) contemporaneously with respect furnishing any such nonpublic information to such party, Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to the person making such Parent). Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms subsidiaries will immediately cease any and conditions no less favorable than those in the Confidentiality Agreement)all existing activities, (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position parties conducted heretofore with respect to any tender offer Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.4 by any officer, director or exchange offer by employee of Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of Company or any of its subsidiaries shall be deemed to be a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares breach of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with this Section 5.02(b)).5.4
Appears in 2 contracts
Samples: Agreement and Plan (Harbinger Corp), Agreement and Plan (Harbinger Corp)
No Solicitation. (a) From Except as otherwise provided for in this Agreement, the date Company agrees that it and its Subsidiaries shall, and that it shall cause its and their respective directors, officers or other employees, controlled Affiliates, or any investment banker, attorney, accountant or other agent or representative retained by any of this Agreement them (collectively, “Representatives”) to immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and, until the earlier of the Effective TimeTime or the date, unless if any, on which this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, : (i) solicit, initiate, negotiate, knowingly facilitate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Acquisition Proposal, ; (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, any Acquisition Proposal; (iii) engage in discussions with any person with respect to any Acquisition Proposal; (iv) approve or recommend any Acquisition Proposal; (v) enter into any letter of intent or similar document or any agreement or commitment providing for any Acquisition Proposal; (vi) take any other action to facilitate any inquiries or make the making provisions of any proposal that constitutes“fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or may reasonably be expected to lead toa third party becoming an “interested stockholder” under, any Company Takeover ProposalSection 203 of the DGCL), or afford access any restrictive provision of any applicable anti-takeover provision in the certificate of incorporation or bylaws of the Company, inapplicable to properties, books any person other than Parent and its Affiliates or records to any transactions constituting or contemplated by an Acquisition Proposal; or (vii) resolve or agree to do any of the foregoing. The Company shall promptly after the date hereof instruct each person that has executed a confidentiality agreement (other than the Confidentiality Agreement) relating to an Acquisition Proposal or potential Acquisition Proposal with or for the benefit of the Company promptly (and in any case within five Business Days) to return or destroy all information, documents and materials relating to the Company Subsidiaries to, any Person that made a Company Takeover Acquisition Proposal or to any Person that has disclosed to the Company that it is contemplating making a or its businesses, operations or affairs heretofore furnished by the Company Takeover Proposalor any of its Representatives to such person or any of its Representatives in accordance with the terms of any confidentiality agreement with such person, and shall use reasonable best efforts to enforce, and not waive without Parent’s prior written consent, any standstill or similar provision in any confidentiality or other agreement with such person; provided, however, that, prior to that if the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, Special Committee determines in good faith, after consultation with outside counsel, that it would be inconsistent with its outside legal counsel and financial advisorsfiduciary obligations under Delaware Law not to do so, isthe Company may waive any standstill or similar provisions in its agreements to the extent necessary to permit a person to make, or may reasonably be expected on a confidential basis to lead tothe Special Committee, a Superior Company an Acquisition Proposal, conditioned upon such Person agreeing to disclosure of such Acquisition Proposal to Parent and Acquisition Sub, in each case as contemplated by and subject to compliance with this Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))5.02.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rouse Properties, Inc.), Agreement and Plan of Merger (Brookfield Asset Management Inc.)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company The QEPM Parties shall not, nor and the QEPM Parties shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, cause the Company or any Company Subsidiary QEPM Subsidiaries not to, and the Company QEPM Parties shall direct and use their commercially reasonable best efforts to cause the QEPM Parties’ respective directors, officers or employees or any investment bank, financial advisor, attorney, accountant or other advisor, agent or representative retained by them or any of the QEPM Subsidiaries, including for clarification and without limitation the QEPM Conflicts Committee and its members, financial advisors, attorneys and the Company Subsidiaries’ Representatives other advisors (collectively, “Representatives”) not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesQEPM Takeover Proposal or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto (except to notify such Person of the existence of the provisions of this Section 5.5), or may reasonably be expected to lead to, disclose any Company Takeover Proposal, non-public information or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company has made, or to the QEPM Parties’ Knowledge is considering making, any QEPM Takeover Proposal or any inquiry with respect thereto, or approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, option agreement, acquisition agreement or other similar agreement relating to a QEPM Takeover Proposal, or propose publicly or agree to do any of the foregoing relating to a QEPM Takeover Proposal or any inquiry with respect thereto. The QEPM Parties shall, and shall cause the QEPM Subsidiaries to, immediately cease and cause to be terminated, and shall use their commercially reasonable best efforts to cause their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Person conducted heretofore with respect to any Person that has disclosed to the Company that it is contemplating making a Company QEPM Takeover Proposal; provided. The QEPM Parties shall enforce, howeverand not terminate or grant any waiver with respect to, thatexisting confidentiality, standstill or similar agreements. Notwithstanding the foregoing, at any time prior to (but not after) the consummation date of the Merger, in addition to Section 5.02(b), the Company mayQEPM Unitholder Approval, in response to an unsolicited a bona fide Company written QEPM Takeover Proposal, which QEPM Takeover Proposal which was not solicited, initiated, knowingly encouraged or knowingly facilitated by the QEPM Parties or their respective Representatives, was made after the date hereof and did not otherwise result from a breach of this Section 5.02(a5.5(a), the QEPM Parties may, if and only if (i) and which the Company Board determines, in good faith, QEPM Conflicts Committee determines (A) after consultation with its financial advisor and legal counsel, that the QEPM Takeover Proposal constitutes or is likely to result in a Superior Proposal and (B) after consultation with outside legal counsel counsel, that the failure to do so would not be in the best interests of the Holders of Non-affiliated QEPM Common Units and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance (ii) the QEPM Parties comply with all of their obligations under this Section 5.02(c)5.5, (x) furnish information with respect to the Company QEPM Group Entities to the person Person making such Company QEPM Takeover Proposal (and its Representatives Representatives) pursuant to a customary an executed confidentiality agreement (which shall have terms agreement, provided that all such information has previously been provided to TLLP and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with the Person making such person QEPM Takeover Proposal (and its Representatives Representatives) regarding any Company such QEPM Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tesoro Logistics Lp), Agreement and Plan of Merger (QEP Midstream Partners, LP)
No Solicitation. (a) From and after the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIhereof, the Company agrees (i) that it and its subsidiaries shall not, nor shall it or its subsidiaries authorize or knowingly permit any Company Subsidiary todirector, nor shall it authorize officer or permit any Representative of, employee of the Company or any Company Subsidiary toof its subsidiaries or any investment banker, and attorney, accountant or other advisor or representative of the Company shall cause or any of its and subsidiaries (collectively, the Company Subsidiaries’ Representatives not “Representatives”) to, directly or indirectly, (i) solicit, initiateinitiate or encourage, negotiateor take any other action knowingly to facilitate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (as defined below) or (iii) participate engage in any discussions or negotiations regarding, or furnish provide any nonpublic information or data to any person any information with respect to, make or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toimplement, any Company Takeover Proposal, in each case other than a Takeover Proposal made by Parent; (ii) that it shall immediately cease and cause to be terminated any existing discussions or afford access negotiations with any third persons conducted heretofore with a view to properties, books or records formulating a Takeover Proposal; and (iii) that it shall immediately notify Parent of the Company or the Company Subsidiaries to, receipt of any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company and that it is contemplating making a Company shall keep Parent informed of the status of such Takeover Proposal; provided, however, that, at any time prior to obtaining the consummation of the Merger, in addition to Section 5.02(b)Stockholder Approval, the Company may, in response to an unsolicited a bona fide Company Takeover Proposal that the Board of Directors of the Company determines in good faith could reasonably be expected to lead to a Superior Proposal (as defined below) and which Takeover Proposal did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c)4.02, (x) furnish information with respect to the Company and its subsidiaries to the person making such Company Takeover Proposal (and its Representatives representatives) pursuant to a customary confidentiality agreement (which except that such confidentiality agreement shall have terms and conditions no less favorable than those in the Confidentiality Agreementnot prohibit such person from making an unsolicited Takeover Proposal), provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives representatives) regarding any Company such Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Water Works Company, Inc.), Agreement and Plan of Merger
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company The MLP Parties shall not, nor and the MLP Parties shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary cause their respective subsidiaries not to, and the Company MLP Parties shall direct and use their reasonable best efforts to cause the MLP Parties’ respective directors, officers or employees or any investment bank, financial advisor, attorney, accountant or other advisor, agent or representative retained by them or any of their subsidiaries, including for clarification and without limitation the MLP Conflicts Committee and its members, financial advisors, attorneys and the Company Subsidiaries’ Representatives other advisors (collectively, “Representatives”) not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesMLP Takeover Proposal or any inquiry with respect thereto or engage in discussions or negotiations with any person with respect thereto (except to notify such person of the existence of the provisions of this Section 5.6), or may reasonably be expected to lead to, disclose any Company Takeover Proposal, non-public information or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person person that made a Company has made, or to the MLP Parties’ knowledge is considering making, any MLP Takeover Proposal or any inquiry with respect thereto, or approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, option agreement, acquisition agreement or other similar agreement relating to an MLP Takeover Proposal, or propose publicly or agree to do any of the foregoing relating to an MLP Takeover Proposal or any inquiry with respect thereto. The MLP Parties shall, and shall cause their respective subsidiaries to, immediately cease and cause to be terminated, and shall use their reasonable best efforts to cause their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any person conducted heretofore with respect to any Person that has disclosed to the Company that it is contemplating making a Company MLP Takeover Proposal; provided. The MLP Parties shall enforce, howeverand not terminate or grant any waiver with respect to, thatexisting confidentiality, standstill or similar agreements. Notwithstanding the foregoing, at any time prior to (but not after) the consummation date of the Merger, in addition to Section 5.02(b), the Company mayMLP Unitholder Approval, in response to an unsolicited a bona fide Company written MLP Takeover Proposal, which MLP Takeover Proposal which was not solicited, initiated, knowingly encouraged or knowingly facilitated by the MLP Parties or their respective Representatives, was made after the date hereof and did not otherwise result from a breach of this Section 5.02(a5.6(a), the MLP Parties may, if and only if (i) and which the Company Board determines, MLP Conflicts Committee determines in good faith, faith (A) after consultation with its financial advisor, that the MLP Takeover Proposal constitutes or is reasonably likely to result in a Superior Proposal and (B) after consultation with outside legal counsel counsel, that the failure to do so would be reasonably likely to constitute a violation of its fiduciary duties owed to the holders of MLP Units under applicable Law and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance (ii) the MLP Parties comply with all of their obligations under this Section 5.02(c)5.6, (x) furnish information with respect to the Company MLP Group Entities to the person making such Company MLP Takeover Proposal (and its Representatives Representatives) pursuant to a customary an executed confidentiality agreement (which shall have terms and conditions no not less favorable restrictive of such person than those in the MLP Confidentiality Agreement), provided that all such information has previously been provided to Buyer or is provided to Buyer within two days of the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such person MLP Takeover Proposal (and its Representatives Representatives) regarding any Company such MLP Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pacific Energy Partners Lp), Agreement and Plan of Merger (Plains All American Pipeline Lp)
No Solicitation. (a) From Company agrees that it will not, and will cause its Subsidiaries and its Subsidiaries’ officers, directors, agents, advisors and affiliates not to, initiate, solicit, encourage or knowingly facilitate inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal; provided that, in the event Company receives an unsolicited bona fide Acquisition Proposal and the Board of Directors of Company concludes in good faith that such Acquisition Proposal constitutes or is more likely than not to result in a Superior Proposal, Company may, and may permit its Subsidiaries and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Board of Directors of Company concludes in good faith (and based on the advice of outside counsel) that failure to take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso or engaging in any negotiations, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to Company than the Confidentiality Agreement of December 9, 2010. Company will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit with any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement persons other than Purchaser with respect to any Company Takeover Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to (x) enforce any confidentiality or similar agreement relating to an Acquisition Proposal and (iiiy) participate in within ten business days after the date hereof, request and confirm the return or destruction of any discussions or negotiations regarding, or furnish confidential information provided to any person (other than Purchaser and its affiliates) pursuant to any information with respect to, such confidentiality or take similar agreement. Company will promptly (and in any other action to facilitate any inquiries or the making event within 24 hours) advise Purchaser following receipt of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records Acquisition Proposal and the substance thereof (including the identity of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal Acquisition Proposal), and its Representatives pursuant to a customary confidentiality agreement will keep Purchaser promptly apprised of any related developments, discussions and negotiations (which shall have including the terms and conditions no less favorable than those in of the Confidentiality Agreement), (yAcquisition Proposal) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, on a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))current basis.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Marshall & Ilsley Corp), Agreement and Plan of Merger (Bank of Montreal /Can/)
No Solicitation. (a) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII7, the Company shall not, nor and shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary cause its Subsidiaries and their respective affiliates not to, and shall use its best efforts to cause the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal information or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), or take any other action to facilitate facilitate, any inquiries inquiry in connection with or the making of any proposal from any Person that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal (as defined in Section 5.08(f)), (ii) enter into, explore, maintain, participate in or continue any Company Takeover discussion or negotiation with any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) regarding an Acquisition Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or furnish to any Person that has disclosed (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) any non-public information or otherwise assist or participate in, facilitate or encourage, any effort or attempt by any other Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) to the make or effect an Acquisition Proposal, (iii) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal, or (iv) authorize or permit any Company that it is contemplating making a Company Takeover ProposalRepresentative to take any such action; provided, however, that, prior to until the consummation date of the Merger, in addition to Section 5.02(b)approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, the Company mayBoard, based upon the recommendation of the Special Committee, shall not be prohibited by this Section 5.08 from furnishing information to, or engaging in response to discussions or negotiations with, any Person that makes an unsolicited bona fide Company Takeover written Acquisition Proposal (which did not result from a breach of this Section 5.02(a5.08) and which if (A) the Company Board, based upon the recommendation of the Special Committee, determines in good faith after consultation with independent outside legal counsel, that such action is necessary for the Company Board determines, in good faith, after consultation to comply with its outside legal counsel and financial advisorsfiduciary duties to the Company’s shareholders under applicable Law, is, (B) the Acquisition Proposal constitutes or may would reasonably be expected to lead to a Superior Proposal (as defined in Section 5.08(g)) and (C) prior to furnishing such information to, a Superior Company Proposalor engaging in discussions or negotiations regarding an Acquisition Proposal or the Transactions with, and subject to compliance with Section 5.02(c)such Person, (x) furnish information with respect to the Company to the person making receives from such Company Takeover Proposal and its Representatives pursuant to a customary Person an executed confidentiality agreement (which agreement shall have be provided to Parent for information purposes) with terms and conditions no less favorable to the Company than those contained in the Confidentiality Agreement). For the avoidance of doubt, (y) participate in discussions or negotiations with each such person and its Representatives regarding confidentiality agreement shall contain an express provision prohibiting such Person from making any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer Acquisition Proposals other than as requested by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend following a determination by the Company Board that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))initial Acquisition Proposal does not constitute a Superior Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (National Home Health Care Corp), Agreement and Plan of Merger (National Home Health Care Corp)
No Solicitation. (a) From the date of Until this Agreement to has been terminated in accordance with Section 8.1, none of the Effective TimeCompany, unless this Agreement is terminated earlier pursuant to Article VIIIits Subsidiaries or any officer, the Company shall notdirector, nor shall it authorize employee, agent or permit representative (including any Company Subsidiary toinvestment banker, nor shall it authorize financial advisor, attorney, accountant or permit any Representative of, other retained representative) of the Company or any Company Subsidiary to, and the Company of its Subsidiaries shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) or take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, consolidation, sale of assets, sale of shares of capital stock (including, without limitation, by way of a tender offer) or similar transactions involving the submission Company or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any Company Takeover of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regardingregarding an Alternative Transaction or (iii) enter into any agreement regarding any Alternative Transaction. Notwithstanding the foregoing, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making Board of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records Directors of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, thatshall be permitted, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company ProposalShareholder Meeting, and subject to compliance with the other terms of this Section 5.02(c)6.11 and to first entering into a confidentiality agreement with the person proposing such Acquisition Proposal on terms substantially similar to, (x) furnish information with respect and no less favorable to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than than, those contained in the Confidentiality Agreement, to (A) consider and participate in discussions and negotiations with respect to a bona fide Acquisition Proposal received by the Company, and (B) withdraw, modify or qualify the Company Recommendation, in each case if and only to the extent that the Board of Directors of the Company reasonably determines in good faith (after consultation with outside legal counsel) that failure to do so would cause it to violate its fiduciary duties (a “Change in Recommendation”) and (C) approve or recommend, or enter into (and, in connection therewith, effect a Change in Recommendation), a definitive agreement with respect to an unsolicited, bona fide and written Acquisition Proposal that is submitted to the Company after the date of this Agreement and prior to the approval of the transactions contemplated by this Agreement at its meeting of stockholders to be held pursuant to Section 6.3, if and so long as (1) none of the Company, any of its Affiliates or any of its or their officers, directors, agents or representatives has violated any of the provisions of this Section 6.11, (2) the Company provides Parent with written notice indicating that the Company, acting in good faith, believes that the Acquisition Proposal is reasonably likely to constitute a Superior Proposal and, therefore, plans to conduct a meeting of the Board of Directors of the Company for the purpose of considering whether the Acquisition Proposal constitutes a Superior Proposal, which notice shall be delivered to Parent at least three business days prior to the date of such meeting of the Board of Directors of the Company, (3) during the three business day period after the Company provides Parent with the written notice described in clause (2) above, the Company shall cause its financial and legal advisors to negotiate in good faith with Parent in an effort to make such adjustments to the terms and conditions of this Agreement such that the Acquisition Proposal would not constitute a Superior Proposal and, therefore, the Company would be required to proceed with the transactions contemplated hereby on such adjusted terms, (4) notwithstanding the negotiations and any adjustments pursuant to clause (3) above, the Board of Directors of the Company makes the determination necessary for the Acquisition Proposal to constitute a Superior Proposal, (5) notwithstanding the negotiations and any adjustments pursuant to clause (3) above, the Board of Directors of the Company concludes in good faith (after receiving the advice of its outside counsel and its financial advisors) that failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law and (6) not later than the earlier of the approval or recommendation of, or the execution and delivery of a definitive agreement with respect to, any such Superior Proposal, the Company (I) terminates this Agreement pursuant to Section 8.1(h), (yII) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal makes the payments required to be made pursuant to Section 8.3 and (zIII) take, delivers to Parent a written certification duly executed by each other party to such Superior Proposal pursuant to which each such other party certifies that it is aware of the amounts payable under Section 8.3 and disclose that it waives any right that it may have to contest the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))amounts so payable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tierone Corp), Agreement and Plan of Merger (Tierone Corp)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall and its affiliates will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause and its affiliates will use their reasonable efforts to ensure that their respective officers, directors, employees, investment bankers, attorneys, accountants and the Company Subsidiaries’ Representatives not toother representatives and agents do not, directly or indirectly, (i) initiate, solicit, initiate, negotiate, knowingly encourage or knowingly participate in negotiations or discussions relating to, or provide any information to any Person (as defined below) concerning, or take any action to facilitate the making of, any offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal (including by way as defined below) of furnishing non-public information) the submission of Company or any affiliate, or any inquiry with respect thereto, or agree to approve or recommend any Acquisition Proposal. The Company Takeover Proposalshall, (ii) enter into and shall cause its affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, immediately cease and cause to be terminated all existing activities, discussions and negotiations, if any, with any agreement parties conducted heretofore with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or foregoing. Notwithstanding the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b)foregoing, the Company may, directly or indirectly, provide access and furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group pursuant to an appropriate confidentiality agreement, and may negotiate and participate in response to discussions and negotiations with such entity or group concerning an Acquisition Proposal if (x) such entity or group has submitted an unsolicited bona fide written proposal to the Board of Directors of the Company Takeover relating to an Acquisition Proposal which did not result from a breach contemplates the acquisition of this Section 5.02(aall of the stock, assets or business of the Company and (i) and in which the Company Board determines, in good faith, after consultation with offeror demonstrates proof of its outside legal counsel financial capability and financial advisors, is, or may reasonably be expected authority to lead to, a Superior Company Proposal, consummate the transactions contemplated by such offer (including without limitation the payments required by Section 10.1(b) hereof); and subject to compliance with Section 5.02(c), (ii) which provides for (x) furnish information with respect net aggregate cash proceeds to the Company to or all of its stockholders in an amount greater than that provided for hereunder, at a per Share purchase price greater than the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement Merger Consideration (which shall have terms and conditions no less favorable than those or, in the Confidentiality Agreementevent the Merger Consideration has been increased by Parent, such greater amount), (y) participate in discussions or negotiations with the Company's financial advisers have advised the Board of Directors of the Company that such person and its Representatives regarding any Company Takeover Acquisition Proposal is more favorable to the Company's stockholders, from a financial point of view, than the transactions contemplated hereby, and (z) takein the opinion of the Board of Directors of the Company, and disclose after consultation with independent legal counsel to the Company’s stockholders, the failure to provide such information or access or to engage in such discussions or negotiations would result in a position substantial risk of liability for a breach of fiduciary duties of the members of the Board of Directors. Except with respect to Parent's consent, the Company shall not release any tender offer or exchange offer by a third party from, or amend waive any provisions of, any confidentiality or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that standstill agreement to which the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))is a party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Boardwalk Casino Inc), Agreement and Plan of Merger (Mirage Resorts Inc)
No Solicitation. (a) From and after the date hereof until the earlier to occur of the Effective Time or the date of termination of this Agreement to the Effective Timein accordance with Article VII, unless this Agreement is terminated earlier pursuant to Article VIII, the Company each Party shall not, nor shall it authorize or permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or permit any Representative ofof its officers, the Company directors or employees or any Company Subsidiary toAffiliate, and the Company shall cause investment banker, financial advisor, attorney, accountant or other Representative retained by it or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect towhich has not been previously publicly disseminated), or take any other action designed to facilitate facilitate, any inquiries inquiry or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or afford access to propertiesother agreement, books arrangement or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or understanding relating to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or (iii) enter into, continue or otherwise participate in any discussions or negotiations regarding any Acquisition Proposal; provided, however, thatthat if any Party, prior to obtaining its Shareholder Approval, following the consummation receipt of a Superior Proposal or an Acquisition Proposal that such Party’s board of directors, determines in good faith is reasonably expected to lead to a Superior Proposal and that in either case was unsolicited and made after the Merger, date of this Agreement in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did circumstances not result from otherwise involving a breach of this Section 5.02(a) Agreement, and which the Company Board determines, such Party’s board of directors determines in good faith, after consultation with its outside legal counsel and financial advisorscounsel, isthat a failure to take action with respect to such Acquisition Proposal would be inconsistent with its fiduciary duties to its shareholders under applicable Law, or may reasonably be expected such Party may, in response to lead to, a Superior Company such Acquisition Proposal, and subject to compliance with Section 5.02(c5.9(c), (x) furnish information with respect to the Company such Party to the person party making such Company Takeover Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no that contains provisions not less favorable to such Party (an “Acceptable Confidentiality Agreement”), than those contained in the Confidentiality Agreement). It is agreed that any violation of the restrictions set forth in the preceding sentence by any officers, (ydirectors or employees or any Affiliate, investment banker, financial advisor, attorney, accountant or other Representative of each of the Parties or any of their respective Subsidiaries shall be deemed to be a breach of this Section 5.9(a) participate in discussions by such Party. Each Party shall, and shall cause its Subsidiaries and each of their directors, officers, employees, and Representatives to, immediately cease any and all existing activities, discussions, or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position Persons conducted heretofore with respect to any tender offer Acquisition Proposal and will use and cause to be used all commercially reasonable efforts to enforce any confidentiality or exchange offer similar or related agreement relating to any Acquisition Proposal, including promptly requiring any other party to such an agreement to promptly destroy or return all related information provided by a third party or amend on behalf of the applicable Party or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))its Affiliates.
Appears in 2 contracts
No Solicitation. (a) From the date of this Agreement Subject to Section 8 hereof, prior to the Effective TimeTermination Date, unless this Agreement is terminated earlier pursuant to Article VIII, the Company such Shareholder shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ respective Representatives not to, directly or indirectly, (i) solicitinitiate any negotiations with any Person with respect to, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing provide any non-public information) information or data concerning the submission Company or their respective Subsidiaries, to any Person relating to a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction or afford to any Person access to the business, properties, assets or personnel of any Group Company Takeover or any of their respective Subsidiaries in connection with a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction, (ii) enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating to a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction, (iii) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover Laws of any state relating to a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction, or (iv) otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction. Such Shareholder also agrees that immediately following the execution of this Agreement such Shareholder shall, and shall cause its Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted heretofore with respect to any Company Takeover Business Combination Proposal, Acquisition Proposal or a Specified Other Transaction. Such Shareholder shall promptly (iii) participate and in any discussions or negotiations regardingevent within two (2) Business Days) notify, or furnish to any person any information with respect toin writing, or take any other action to facilitate any inquiries or SPAC of the making receipt of any proposal inquiry, proposal, offer or request for information received after the date hereof that constitutes, or may could reasonably be expected to result in or lead to, any Company Takeover a Business Combination Proposal, an Acquisition Proposal or afford access a Specified Other Transaction which notice shall include a summary of the material terms of such inquiry, proposal or offer (and shall include any other documents evidencing or specifying the terms of such proposal, offer, inquiry or request). Such Shareholder shall promptly (and in any event within twenty-four (24) hours) keep SPAC reasonably informed of any material developments with respect to propertiesany such inquiry, books proposal, offer, request for information or records a Business Combination Proposal, an Acquisition Proposal or a Specified Other Transaction (in each case, including any material changes thereto). Notwithstanding anything in this Agreement to the contrary, (i) such Shareholder shall not be responsible for the actions of the Company or the Company Subsidiaries toBoard (or any committee thereof), any Person that made a Subsidiary of the Company, or any officers, directors (in their capacity as such), employees and professional advisors of any of the foregoing (collectively, the “Company Takeover Proposal Related Parties”), (ii) such Shareholder makes no representations or to any Person that has disclosed warranties with respect to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation actions of any of the MergerCompany Related Parties, in addition to Section 5.02(b), and (iii) any breach by the Company mayof its obligations under Section 8.6 (Business Combination Proposal, in response to an unsolicited bona fide Company Takeover Proposal which did Acquisition Proposals and Specified Other Transactions) of the Business Combination Agreement shall not result from be considered a breach of this Section 5.02(a6(a) and which (it being understood that, for the Company Board determinesavoidance of doubt, in good faithsuch Shareholder or his, after consultation with its outside legal counsel and financial advisors, is, her or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement)remain responsible for any breach by such Shareholder or his, (y) participate in discussions her or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with this Section 5.02(b6(a)).
Appears in 2 contracts
Samples: Shareholder Support Agreement (Above Food Ingredients Inc.), Shareholder Support Agreement (Bite Acquisition Corp.)
No Solicitation. (a) From the date of this Agreement The Company, its affiliates and their respective officers, directors, employees, representatives and agents will immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the any Company shall Takeover Proposal. The Company will not, nor shall will it permit any of its Subsidiaries to, nor will it authorize or permit any Company Subsidiary toof its officers, nor shall it authorize directors or permit any Representative of, the Company employees or any Company Subsidiary toinvestment banker, and the Company shall cause financial advisor, attorney, accountant or other representative retained by it or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage solicit or knowingly facilitate initiate (including without limitation by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to), or take any other action (other than as required by Law) designed or reasonably likely to facilitate facilitate, any inquiries or the making of any proposal that constitutes, which constitutes or reasonably may reasonably be expected give rise to lead to, any Company Takeover Proposal or (ii) participate in any discussions or negotiations regarding any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, thatthat if, at any time prior to the consummation date on which Purchaser purchases Shares in the Offer (the "OFFER COMPLETION DATE"), the Company Board determines in good faith and in conformity with the advice of outside counsel, that failure to do so would result in a breach of its fiduciary duties to the Merger, in addition to Section 5.02(b)Shareholders under applicable Law, the Company may, in response to an unsolicited bona fide a Company Takeover Proposal which was not solicited by it and did not otherwise result from a breach of any provision of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c)Agreement, (xA) furnish information with respect to the Company and each of its Subsidiaries and access to the person making such Company Takeover Proposal and its Representatives Subsidiaries and their personnel to any Person pursuant to a customary confidentiality agreement (which shall have terms and conditions no less not more favorable to the recipient of such information than those in the Confidentiality Agreement), Agreement and (yB) participate in discussions and negotiations regarding such Company Takeover Proposal. For purposes of this Agreement, "COMPANY TAKEOVER PROPOSAL" means any inquiry, proposal or negotiations with such person offer from any Person relating to any direct or indirect acquisition or purchase of 20% or more of the assets of the Company and its Representatives regarding Subsidiaries, taken as a whole, or 20% or more of any class of equity securities of the Company Takeover Proposal and (z) takeor any of its Subsidiaries, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that for Shares of any class of equity securities of the Company Board shall not recommend that the Company’s stockholders tender their shares or any of capital stock in its Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company in connection with such tender offer or exchange unless any of its Subsidiaries, other than the Company has complied with Section 5.02(b))transactions contemplated by this Agreement, or any other transaction that is intended or could reasonably be expected to prevent the completion of the transactions contemplated hereby.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fingerhut Companies Inc), Agreement and Plan of Merger (Federated Department Stores Inc /De/)
No Solicitation. (a) From and after the date of this Agreement to until the Effective Time, unless Time or earlier termination of this Agreement is terminated earlier pursuant to Article VIIISection 8, Mediconsult and its Subsidiaries and the officers, directors, employees, agents, representatives and advisors of Mediconsult and its Subsidiaries (collectively, the Company shall "Representatives") will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate or agree to any inquiries Takeover Proposal or (ii) subject to the making of any proposal that constitutesnext three sentences, engage in negotiations with, or may reasonably be expected disclose any nonpublic information relating to lead Mediconsult or its Subsidiaries to, any Company Takeover Proposal, or afford access to the properties, books or records of the Company Mediconsult or the Company any of its Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person person that has disclosed to the Company advised Mediconsult that it is contemplating making may be considering making, or that has made, a Company Takeover Proposal; provided, however, that, prior nothing herein shall prohibit Mediconsult's Board of Directors from taking and disclosing to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response its stockholders a position with respect to an unsolicited bona fide Company tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Securities Exchange Act. Notwithstanding the immediately preceding sentence, if an unsolicited Takeover Proposal which did shall be received by the Board of Directors of Mediconsult, then, to the extent the Board of Directors of Mediconsult believes in good faith (after receiving advice from a reputable financial advisor reasonably acceptable to Andrx) that such Takeover Proposal is reasonably capable of being consummated and would, if consummated, be reasonably likely to result in a transaction more favorable to the Mediconsult Stockholders than the transaction contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Mediconsult determines in good faith that it could reasonably be deemed necessary for the Board of Directors of Mediconsult to further entertain and consider the Superior Proposal in order to comply with its fiduciary duties to stockholders under applicable law, Mediconsult and its Representatives may furnish information and afford access to the properties, books or records of Mediconsult or any of its Subsidiaries to the party making such Superior Proposal and engage in negotiations with such party, and such actions shall not result from be considered a breach of this Section 5.02(a6(j) or any other provisions of this Agreement; provided that in any event Mediconsult shall notify Andrx of the receipt of a Takeover Proposal and shall notify Andrx of any determination by Mediconsult's Board of Directors and Mediconsult shall deliver to Andrx a true and complete copy of the Takeover Proposal (or summary of any oral proposal) received from such third party and all documents containing or referring to non-public information of Mediconsult that are supplied to such third party. Further, Mediconsult shall provide such non-public information pursuant to a nondisclosure agreement containing customary limitations on the use and disclosure of all written and oral information furnished to such third party by or on behalf of Mediconsult (which will not contain "standstill" or similar provisions). In addition, Mediconsult shall not agree to endorse, and shall not permit any of its officers, directors, employees or other representatives to agree to or endorse, any Takeover Proposal or withdraw its recommendation of this Agreement and the Company Merger unless the Board determines, of Directors of Mediconsult believes in good faith, faith (after consultation receiving advice from a reputable financial advisor reasonably acceptable to Andrx) that such action is required in order for the Board of Directors to comply with its outside legal counsel fiduciary duties to stockholders under applicable law, and financial advisorsMediconsult has terminated this Agreement pursuant to Section 8(a). Mediconsult will promptly (and in any event within 24 hours) notify Andrx after receipt of any Takeover Proposal or any notice that any person is considering making a Takeover Proposal or any request for non-public information relating to Mediconsult or any of its Subsidiaries or for access to the properties, isbooks or records of Mediconsult or any of its Subsidiaries by any person that has advised Mediconsult that it may be considering making, or may reasonably be expected to lead tothat has made, a Superior Company ProposalTakeover Proposal (such notice to include the identity of such person or persons), and subject will keep Andrx fully informed of the status and details of any such Takeover Proposal notice, request or any correspondence or communications related thereto and shall provide Andrx with a true and complete copy of such Takeover Proposal notice or request or correspondence or communications related thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Mediconsult shall immediately cease and cause to compliance be terminated any discussion or negotiations with Section 5.02(c), (x) furnish information any persons that may have existed with respect to the Company a Takeover Proposal prior to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality execution of this Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Andrx Corp /De/), Agreement and Plan of Merger (Mediconsult Com Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it permit any of its Subsidiaries to, or authorize or permit any Company Subsidiary todirector, nor shall it authorize officer or permit any Representative of, employee of the Company or any Company Subsidiary toof its Subsidiaries or any investment banker, and attorney, accountant or other advisor or representative of the Company shall cause or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiateinitiate or encourage, negotiateor take any other action knowingly to facilitate, knowingly encourage any Takeover Proposal or knowingly facilitate (including by way of furnishing non-public information) any inquiries or the submission making of any Company proposal that constitutes or could reasonably be expected to lead to a Takeover Proposal, or (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toway with, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, that at any time prior to obtaining the consummation Stockholder Approval, the Board of the Merger, in addition to Section 5.02(b), Directors of the Company may, in response to an unsolicited a bona fide Company written Takeover Proposal that such Board of Directors reasonably determines in good faith by resolution duly adopted constitutes a Superior Proposal, and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Agreement (including this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal5.02), and subject to compliance with Section Sections 5.02(b) and 5.02(c), (xA) furnish information with respect to the Company and its Subsidiaries to the person making such Company Takeover Proposal (and its Representatives representatives) pursuant to a customary confidentiality agreement (which shall have having terms and conditions no less that are at least as favorable than those to the Company as the terms contained in the Confidentiality Agreement), provided that all such information is provided on a prior basis to Parent, and (yB) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives representatives) regarding any Company such Takeover Proposal and (z) takeProposal, and disclose but in each case only to the Company’s stockholdersextent the Board of Directors of the Company determines in good faith, a position after consultation with respect to any tender offer or exchange offer outside counsel, by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided resolution duly adopted, that the failure to take such action would constitute a breach of the fiduciary duties of the Board of Directors of the Company Board under Applicable Law. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 5.02(a) by any director, officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries shall not recommend that be deemed to be a breach of this Section 5.02(a) by the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (L 3 Communications Corp), Agreement and Plan of Merger (Westwood Corp/Nv/)
No Solicitation. (a) From the date of this Agreement to until the Effective TimeClosing or, unless if earlier, the termination of this Agreement is terminated earlier pursuant to Article VIIIin accordance with its terms, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not toESOP agree that they will not, directly or indirectly, or directly or indirectly through any officer, director, employee, investment banker, attorney, advisor, representative or agent (each a “Representative”), as applicable for any or all of them (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any inquiry, proposal or offer (whether in writing or otherwise) that constitutes, or could lead to, a proposal or offer for a merger, consolidation, business combination, recapitalization, sale of substantial assets or sale of a substantial percentage of the Shares (including without limitation by way of a public offering or private placement) involving the Company Takeover other than the Contemplated Transactions (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal, ”); (ii) enter into engage in negotiations or discussions concerning, or provide any agreement with respect non-public information to any Company Takeover Proposal Person relating to, any Acquisition Proposal; or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect agree to, approve or take recommend any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however, thatthat if, prior to at any time after the consummation of the Merger, in addition to Section 5.02(b)date hereof, the Company may, in response to ESOP receives an unsolicited bona fide Company Takeover written Acquisition Proposal which did not result from a breach of this Section 5.02(a) and (under circumstances in which the Company Board determinesand the ESOP have complied with their obligations under this Section 6.15) from any Person (other than Purchaser), which is determined in good faith, faith (after consultation with its outside legal counsel financial advisors and financial advisors, isthe Board of Directors of the Company) by the Trustee to be, or may to be reasonably be expected likely to lead to, result in a Superior Company Proposal, and subject to compliance with Section 5.02(c), the ESOP may (x) furnish non-public information with respect to about the Company to the person Person making such Company Takeover Acquisition Proposal (and its Representatives Representatives) pursuant to a customary confidentiality agreement (which shall have terms and conditions no not materially less favorable restrictive of such Person than those in the Confidentiality Agreement), Agreement and (y) participate in discussions or negotiations with the Person making such person Acquisition Proposal (and its Representatives Representatives) regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (Acquisition Proposal; provided that the Company Board Trustee shall not recommend take any such action unless the Trustee shall have determined in good faith, after consultation with outside counsel, that the Company’s stockholders tender their shares failure to take such action would be deemed to constitute a breach of capital stock in its fiduciary duties under applicable Law. The Company and the Company ESOP agree to notify Purchaser as soon as is reasonably practicable (and not later than forty-eight (48) hours) after receipt of any Acquisition Proposal or any request for non-public information in connection with such tender offer an Acquisition Proposal or exchange unless for access to the properties, books or records of the Company by any Person that informs the Company or the ESOP that it is considering making or has made an Acquisition Proposal. Such notice shall be made orally (and shall be confirmed in writing) and shall indicate the identity of the Person making, and the material terms and conditions of, such proposal, inquiry or contact notwithstanding any confidentiality restrictions applicable thereto (which the ESOP shall be required to obtain waiver of prior to its review of any such proposal, inquiry or contact). The ESOP shall inform Purchaser and the Company periodically of the status and content of any discussions or negotiations regarding such Acquisition Proposal with such Person and as promptly as reasonably practicable of any change in the price, structure or form of the consideration or material terms of and conditions regarding the Acquisition Proposal. Each of the Company and the ESOP will use its best efforts to prevent its Representatives from taking any action prohibited hereby if taken by the Company or the ESOP. If either of the Company or the ESOP learns of any such action taken by a Representative, the Company or the ESOP, as the case may be, will immediately advise Purchaser and provide the information specified herein. Notwithstanding anything to the contrary contained herein, (i) nothing in this Section 6.15 shall delay or otherwise affect those obligations of the parties arising under Section 6.4(a) and Section 6.7(a) hereof, and (ii) if the ESOP receives an unsolicited bona fide written Acquisition Proposal (under circumstances in which the Company and the ESOP have complied with their obligations under this Section 5.02(b6.15) from any Person (other than Purchaser), which is determined in good faith (after consultation with its financial advisors and the Board of Directors of the Company) by the Trustee to be, or to be reasonably likely to result in a Superior Proposal and at or after the time of the receipt of such Acquisition Proposal all of the conditions to the Closing set forth in Article VII (except those conditions which by their nature can only be satisfied on the Closing Date) have been or are subsequently satisfied, the ESOP shall determine (and shall provide reasonably prompt oral and written notice of such determination to Purchaser and the Company) to accept or reject such Acquisition Proposal within seven (7) Business Days following the later of the receipt of such Acquisition Proposal or satisfaction of such conditions. In the event that the ESOP determines to accept such Acquisition Proposal, the ESOP shall, on the next succeeding Business Day following the expiration of such seven (7) Business Day period, invoke the procedures set forth in Section 11.1(e), including, without limitation, by providing Purchaser with five (5) Business Days to amend the terms of its offer. In the event that the ESOP determines to reject such Acquisition Proposal, the ESOP shall, on the next succeeding Business Day following the expiration of such seven (7) Business Day period, provide notice to the Person(s) making the Acquisition Proposal of such rejection, and shall cease all negotiations and discussions regarding an Acquisition Proposal with such Person(s).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Global Defense Technology & Systems, Inc.), Stock Purchase Agreement (Global Defense Technology & Systems, Inc.)
No Solicitation. (a) From and after the date of this Agreement to until the Effective Time, unless Time or termination of this Agreement is terminated earlier pursuant to Article VIIIIX, the Company shall and its Subsidiaries will not, nor shall it will they authorize or knowingly permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary of their Representatives to, and the Company shall and its Subsidiaries will use their reasonable efforts to cause its their respective Representatives and the Company Subsidiaries’ Representatives Subsidiaries not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) induce the making, submission or announcement of any Company Takeover Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate for the purpose of facilitating any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, (iv) approve, endorse or afford access to properties, books or records of the Company or the Company Subsidiaries to, recommend any Person that made a Company Takeover Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract or commitment contemplating or otherwise relating to any Person that has disclosed Acquisition Transaction. Notwithstanding anything to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation contrary contained in this Section 6.2 or in any other provision of the Merger, in addition to Section 5.02(b)this Agreement, the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, ismay furnish information to, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with, any third party that has made an unsolicited Acquisition Proposal (a “Potential Acquiror”) that the board concludes is reasonably likely to result in a Superior Offer, if the board determines in good faith (A) after consultation with its financial advisor that the Potential Acquiror submitting such person and its Representatives regarding any Company Takeover Acquisition Proposal has the financial wherewithal to be reasonably capable of consummating such an Acquisition Proposal and (zB) takeafter consultation with its legal counsel, that the failure to participate in such discussions or negotiations or to furnish such information or approve such Acquisition Proposal would be inconsistent with its fiduciary duties under applicable law. The Company agrees that any non-public information furnished to a Potential Acquiror will be pursuant to a confidentiality, standstill and disclose no solicitation agreement containing provisions at least as favorable to the Company’s stockholdersCompany as the confidentiality, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 standstill and Rule 14e-2 promulgated under no solicitation provisions of the Exchange Act (provided Confidentiality Agreement. In the event that the Company Board shall determine to provide any information as described above, or shall receive any Acquisition Proposal (or any material amendment to an Acquisition Proposal previously received), it shall as promptly as practicable, and in any event within one day or, if a written Acquisition Proposal is received on a day that is not recommend a business day, within one day of Company having knowledge of such written Acquisition Proposal, notify Buyer in writing and orally as to that fact and shall furnish to Buyer the identity of the recipient of such information to be provided and/or the Potential Acquiror and the terms of such Acquisition Proposal (or material amendment). For purposes of the preceding sentence of this Section 6.2(a), “knowledge” shall mean the actual knowledge of the Chief Executive Officer or Chief Financial Officer of the Company’s stockholders tender their shares . The Company will notify Buyer as promptly as practicable in all material respects of capital stock in the Company in connection with status and details (including material amendments or proposed material amendments) of any such tender offer or exchange unless the Company has complied with Section 5.02(b))Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Spectrian Corp /Ca/), Agreement and Plan of Merger and Reorganization (Spectrian Corp /Ca/)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall and its subsidiaries and affiliates will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause and its subsidiaries and the Company Subsidiaries’ Representatives not toaffiliates will use their reasonable best efforts to ensure that their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly, : (i) solicit, initiate, negotiate, knowingly encourage solicit or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toencourage, or take any other action to facilitate any inquiries or the making of of, any offer or proposal that constitutes, which constitutes or may is reasonably be expected likely to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(aAlternative Transaction (as defined below) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company or any of its subsidiaries or an inquiry with respect thereto, or, (ii) in the event of an unsolicited Alternative Transaction for the Company or any of its subsidiaries, engage in negotiations or discussions with, or provide any information or data to any person relating to any Alternative Transaction, subject to the Board's good faith determination, after consulting with outside legal counsel to the Company, that the failure to engage in such negotiations or discussions or provide such information would likely result in a breach of the Board's fiduciary duties under applicable law if such Alternative Transaction would provide the Company Stockholders with a purchase price per Share that is higher (the amount of such excess in the purchase price per Share is hereinafter referred to as the "Spread") than the Merger Consideration to be received by the Company Stockholders. The Company shall notify Gaming and RAS orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions thereof and the identity of the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreementsuch), (y) participate in discussions or negotiations with such person and its Representatives regarding any within twenty four hours of the receipt thereof. The Company Takeover Proposal and (z) takeshall, and disclose shall cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, immediately cease and cause to the Company’s stockholdersbe terminated all existing discussions and negotiations, a position if any, with any parties conducted heretofore with respect to any tender offer Alternative Transaction relating to the Company or exchange offer any of its subsidiaries. Notwithstanding anything to the contrary, nothing contained in this Section 4.9 shall prohibit the Company or the Board from communicating to the Company Stockholders a position as required by a third party or amend or withdraw such position in accordance with Rule Rules 14d-9 and Rule 14e-2 14a-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Riviera Holdings Corp), Agreement and Plan of Merger (Paulson Allen E)
No Solicitation. (a) From Neither Seller nor the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall notSeller Subsidiary shall, nor shall it Seller or the Seller Subsidiary authorize or permit any Company Subsidiary toof its directors, nor shall it authorize officers or permit any Representative of, the Company employees or any Company investment banker, financial advisor, attorney, accountant or other representative of Seller or the Seller Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage solicit or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any hold discussions or negotiations regardingwith, or furnish to any person provide any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposalperson, entity or afford access to properties, books group (other than Acquiror or records of the Company or the Company Subsidiaries to, Acquiror Sub) concerning any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover ProposalAcquisition Transaction (as defined below); provided, however, that, that nothing contained in this Agreement shall prevent Seller (on behalf of itself and the Seller Subsidiary) or the Board of Directors of Seller prior to receipt of approval by the consummation stockholders of Seller of this Agreement and the Merger, in addition to Section 5.02(b), the Company may, Parent Merger Documents from (i) providing information in response to a request therefor by a person who has made an unsolicited bona fide Company Takeover Proposal which did not result written proposal to engage in an Acquisition Transaction (an “Acquisition Proposal”) if the Board of Directors of Seller receives from a breach the person so requesting such information an executed confidentiality agreement on customary terms and conditions; (ii) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal; (iii) failing to recommend or withdrawing its recommendation of this Agreement to its stockholders and/or failing to hold the Special Meeting (as defined in Section 5.02(a5.8) to consider this Agreement; or (iv) recommending such an Acquisition Proposal to the stockholders of Seller, if and which only to the Company Board determinesextent that, in each such case referred to in clause (i), (ii), (iii) or (iv) above, (A) Seller’s Board of Directors determines in good faith, faith (after consultation with outside legal counsel) that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law and (B) Seller’s Board of Directors determines in good faith (after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and subject regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to Seller’s stockholders from a financial point of view than the Mergers. An Acquisition Proposal which is received and considered by Seller in compliance with this Section 5.02(c), 5.3 and which meets the requirements set forth in clauses (A) and (B) of the preceding sentence is herein referred to as a “Superior Proposal”. Seller will communicate to Acquiror in writing (the “Notice”) as promptly as practicable (and in no event more than 48 hours after receipt) the terms of any proposal which it may receive in respect of any Acquisition Transaction (including amendments thereto) and shall provide Acquiror with copies of (x) furnish information with respect to the Company to the person making all such Company Takeover Proposal written inquiries or proposals and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with an accurate and complete written synopsis of all such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).oral inquiries or
Appears in 2 contracts
Samples: Plan of Merger (Heritage Financial Holding), Plan of Merger (Peoples Holding Co)
No Solicitation. (a) From The Company agrees that it shall immediately cease and cause to be terminated all existing discussions, negotiations and communications with any Persons with respect to any tender or exchange offer involving the Company, any proposal for a merger, consolidation or other business combination involving the Company, any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the business or assets of, the Company, any proposal or offer with respect to any recapitalization or restructuring with respect to the Company or any proposal or offer with respect to any other transaction similar to any of the foregoing with respect to the Company other than the Transactions contemplated by this Agreement (each an “Acquisition Proposal”). Except as provided in Section 5.2(b), from the date of this Agreement to until the earlier of the Effective Time, unless the termination of this Agreement is terminated earlier pursuant to Article VIIIand the time at which directors designated by Parent and/or the Purchaser constitute a majority of the directors on the Company Board of Directors, the Company shall not, nor not and shall it not authorize or permit any Company Subsidiary toits officers, nor shall it authorize directors, employees, investment bankers, attorneys, accountants or permit any Representative ofother agents (collectively, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, “Representatives”) to directly or indirectly, indirectly (i) solicit, initiate, negotiatesolicit or encourage, knowingly encourage or knowingly take any action to facilitate (including by way of furnishing non-public information) the submission of making of, any Company Takeover offer or proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal Acquisition Proposal, or (iii) participate in any the event of an unsolicited Acquisition Proposal for the Company, engage in negotiations or discussions or negotiations regardingwith, or furnish to any person provide any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead data to, any Person (other than Parent or any of its affiliates or representatives) relating to any Acquisition Proposal. The Company Takeover shall promptly notify Parent if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with the Company or its Representatives, in each case, in connection with an Acquisition Proposal or the possibility or consideration of making an Acquisition Proposal, which notice shall identify the name of the Person making such proposal or afford access request or seeking such negotiations or discussions, the material terms and conditions of any offer or proposal and any subsequent changes to propertiessuch terms and conditions. Any violation of this Section 5.2 by any of the Company’s Representatives (other than violations that relate to the delivery of notice and are not material), books whether or records not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of the Company or the Company Subsidiaries tootherwise, any Person that made shall be deemed to be a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a material breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to Agreement by the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Flexsteel Industries Inc), Agreement and Plan of Merger (Dmi Furniture Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and its Subsidiaries and the officers, --------------- directors, employees, agents, representatives and advisors of Company shall cause and its and the Company Subsidiaries’ Representatives not toSubsidiaries (collectively, Company's "Representatives") will not, directly or indirectly, (i) take any action to solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information or furnishing any information) the submission of any Company , other than as required by applicable law, rules or regulations, in a manner which could reasonably be expected to assist a third party in formulating a Takeover Proposal), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate or agree to any inquiries Takeover Proposal (as defined in Section 7.3(f) hereof) or (ii) subject to the making of any proposal that constitutesnext sentence, engage in negotiations with, or disclose any nonpublic information relating to Company or any of its Subsidiaries to any person that has advised Company that it may reasonably be expected to lead toconsidering making, any Company or that has made, a Takeover Proposal, or afford whose efforts to formulate a Takeover Proposal would be assisted thereby; provided, nothing herein shall prohibit Company's Board of Directors -------- from taking and disclosing to Company's stockholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, if an unsolicited written Takeover Proposal shall be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company believes in good faith (after written advice from its financial advisor) that such Takeover Proposal would, if consummated, result in a transaction more favorable to Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, Company and its Representatives may furnish in connection therewith information to the party making such Superior Proposal and engage in negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event Company notifies Parent of such -------- determination by the Company Board of Directors and provides Parent with a true and complete copy of the Superior Proposal received from such third party, and provides (or has provided) Parent with all documents containing or referring to non-public information of Company that are supplied to such third party; provided, further, that Company provides such non-public information pursuant to -------- ------- a non-disclosure agreement at least as restrictive on such third party as the Confidentiality Agreement (as defined in Section 5.4) is on Parent; provided, -------- further, however, that Company shall not, and shall not permit any of its ------- officers, directors, employees or other representatives to agree to or endorse any Takeover Proposal or withdraw its recommendation of the Merger unless Company has provided Parent at least five (5) days prior notice thereof. Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Takeover Proposal or any notice that any person is considering making a Takeover Proposal or any request for non-public information relating to Company or any of its Subsidiaries or for access to the properties, books or records of the Company or the Company any of its Subsidiaries to, by any Person that made a Company Takeover Proposal or to any Person person that has disclosed to the advised Company that it is contemplating making may be considering making, or that has made, a Company Takeover Proposal; provided, howeveror whose efforts to formulate a Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), that, prior to the consummation and will keep Parent fully informed of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company status and details of any such Takeover Proposal which did not result from notice, request or any correspondence or communications related thereto and shall provide Parent with a breach true and complete copy of this Section 5.02(a) and which the Company Board determinessuch Takeover Proposal notice or request or correspondence or communications related thereto, if it is in good faith, after consultation with its outside legal counsel and financial advisors, iswriting, or may reasonably a complete written summary thereof, if it is not in writing. Company shall immediately cease and cause to be expected to lead to, a Superior Company Proposal, and subject to compliance terminated all existing discussion or negotiations with Section 5.02(c), (x) furnish information any persons conducted heretofore with respect to the Company to the person making such Company a Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (E Trade Group Inc), Agreement and Plan of Merger and Reorganization (E Trade Group Inc)
No Solicitation. (a) From Company agrees that it will not, and will cause its Subsidiaries and its and its Subsidiaries’ officers, directors, agents, advisors and affiliates not to, initiate, solicit, encourage or knowingly facilitate inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal; provided that, in the event Company receives an unsolicited Acquisition Proposal and the Board of Directors of Company concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, Company may, and may permit its Subsidiaries and its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Board of Directors of Company concludes in good faith (and based on the advice of counsel) that failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to Company than the Confidentiality Agreement. Company will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit with any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement persons other than Purchaser with respect to any Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Company Takeover Proposal or will promptly (iii) participate and in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making event within two business days) advise Purchaser following receipt of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records Acquisition Proposal and the substance thereof (including the identity of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal Acquisition Proposal), and its Representatives pursuant to a customary confidentiality agreement will keep Purchaser apprised of any related developments, discussions and negotiations (which shall have including the terms and conditions no less favorable than those in of the Confidentiality Agreement), (yAcquisition Proposal) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, on a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))current basis.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (National City Corp), Agreement and Plan of Merger (PNC Financial Services Group Inc)
No Solicitation. (ai) From Witco agrees that, during the date term of this Agreement to the Effective TimeAgreement, unless this Agreement is terminated earlier pursuant to Article VIII, the Company it shall not, nor and shall it not authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company of its subsidiaries or any Company Subsidiary toof its or its subsidiaries' directors, and the Company shall cause its and the Company Subsidiaries’ Representatives not toofficers, employees, agents or representatives, directly or indirectly, to (iA) solicit, initiateiniti- ate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing facilitate, or furnish or disclose non-public information) the submission of any Company Takeover Proposalinformation in furtherance of, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constituteswith respect to any recapitalization, merger, consolidation or other business combination involving Witco, or may reasonably be expected to lead toacquisition of any capital stock or any material portion of the assets (except for acquisition of assets in the ordinary course of business consistent with past practice, any Company Takeover Proposaltransactions disclosed in the Witco Disclosure Schedule and the transactions contemplated by this Agreement) of Witco, or afford access to properties, books or records any combination of the Company foregoing (a "Witco Competing Transaction") or the Company Subsidiaries to(B) negotiate, explore or otherwise engage in discussions with any Person that made a Company Takeover Proposal person (other than Crompton or Newco or their respective directors, officers, employees, agents and representatives) with respect to any Person that has disclosed Witco Competing Transaction. Witco will immediately cease all existing activities, discussions and negotiations with any parties conducted heretofore with respect to any of the Company that it is contemplating making foregoing and shall use its reasonable best efforts to enforce any confidentiality or similar agreement relating to a Company Takeover Proposal; providedWitco Competing Transaction. From and after the execution of this Agreement, howeverWitco shall immediately advise Crompton in writing of the receipt, thatdirectly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to a Witco Competing Transaction (including the specific terms thereof), and promptly furnish to Crompton a copy of any such proposal or inquiry in addition to any information provided to or by any third party relating thereto. Notwithstanding the foregoing, prior to the consummation receipt of the MergerWitco Stockholders Approval, Witco may, but only to the extent required by the fiduciary obligations of its Board of Directors under Applicable Law, as determined in addition good faith and on a reasonable basis by such Board of Directors and based on the written advice of outside counsel that not to Section 5.02(b), the Company mayso act would constitute a violation of such fiduciary obligations, in response to an unsolicited bona fide Company Takeover a publicly disclosed proposal for a Witco Competing Transaction that constitutes a Qualifying Witco Proposal which that was not solicited or encouraged by Witco or its representatives and that did not otherwise result from the breach or a deemed breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal7.3(c), and subject to compliance with the notification provisions of this Section 5.02(c7.3(c), for a 10-day period commencing with the first notification to Crompton under this Section 7.3(c) of receipt of such Witco Competing Transaction, (x) furnish non-public information with respect to the Company Witco to the person making proposing such Company Takeover Proposal Witco Competing Transaction and its Representatives representatives pursuant to a customary confidentiality agreement (which shall have with terms and conditions no less favorable restrictive of such person than those set forth in the Confidentiality Agreement), Agreement and (y) participate in discussions or negotiations with such person and its Representatives representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Witco Competing Transaction.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Crompton & Knowles Corp), Agreement and Plan of Reorganization (Witco Corp)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) directly or indirectly solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action designed to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access (ii) enter into any agreement with respect to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or (iii) directly or indirectly enter into, participate in or continue any discussions or negotiations regarding, or furnish to any Person that has disclosed to the Company that it is contemplating making a person any information with respect to, any Company Takeover Proposal; provided, however, that, prior to obtaining the consummation of the Merger, in addition to Section 5.02(b)Company Stockholder Approval, the Company and its Representatives may, to the extent required by the fiduciary obligations of the Company Board, as determined in good faith by the Company Board after consultation with outside counsel, in response to an unsolicited bona fide a Company Takeover Proposal which that was not solicited by the Company and that did not otherwise result from a breach or a deemed breach of this Section 5.02(a) and which that the Company Board or the Special Committee determines, in good faith, after consultation with its financial advisor and outside legal counsel and financial advisorscounsel, is, or may is reasonably be expected likely to lead to, to a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or and negotiations with such person and its Representatives regarding such Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative or affiliate of the Company or any Company Takeover Proposal and (zSubsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.02(a) takeby the Company. The Company shall, and disclose shall cause its Representatives to, cease immediately all discussions and negotiations regarding any proposal that constitutes, or may reasonably be expected to the Company’s stockholderslead to, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cruzan International, Inc.), Agreement and Plan of Merger (Absolut Spirits CO INC)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall agrees that it will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectlyindirectly through any officer, subsidiary, affiliate, director, employee, stockholder, representative, agent or other person, (i) solicitseek, initiate, negotiate, knowingly solicit or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Person to make an Acquisition Proposal, (ii) enter into engage in negotiations or discussions concerning an Acquisition Proposal with any agreement with respect to any Company Takeover Proposal person or group, (iii) participate in disclose any discussions non-public information relating to the Company or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford give access to the properties, employees, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover of its subsidiaries to any person or group in connection with any Acquisition Proposal or (iv) approve or recommend or agree to approve or recommend any Acquisition Proposal; provided that nothing herein shall prevent the Board of Directors from (a) furnishing information to any Person person that has disclosed made an Acquisition Proposal not solicited in violation of this paragraph or (b) subject to the Company that it is contemplating making a Company Takeover Proposal; providedother provisions of this paragraph, however, that, prior to the consummation entering into or participating in discussions or negotiations concerning an Acquisition Proposal not solicited in violation of the Mergerthis paragraph so long as, in addition to Section 5.02(b)any case, (x) the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach Board of this Section 5.02(a) and which Directors or the Company Board determines, Special Committee shall have concluded in good faith, after consultation with receiving and considering the advice of its outside legal counsel and financial advisorscounsel, is, that failing to participate in such discussions or may reasonably negotiations or furnishing such information would cause the Board of Directors or the Special Committee to be expected in breach of its respective fiduciary responsibilities to lead to, a Superior the Company ProposalStockholders under applicable law, and subject (y) prior to compliance with Section 5.02(c)participating in such discussions or negotiations or furnishing any such information, the Company and the party making such offer agrees to a confidentiality agreement on terms that are, in the aggregate, no less favorable to the Company than those of the Confidentiality Agreement to which Sponsor is a party (other than the standstill provisions thereof) and Merger Subsidiary is given concurrent or advance written notice thereof unless the Board of Directors or the Special Committee shall have concluded in good faith, after receiving and considering the advice of its outside counsel, that doing so would cause it to be in breach of its respective fiduciary responsibilities to the Company Stockholders under applicable law. The Board of Directors or the Special Committee may (x) furnish information with respect fail to the Company make, withdraw, or modify in a manner adverse to the person making such Company Takeover Proposal and Merger Subsidiary its Representatives pursuant recommendation to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those its stockholders referred to in the Confidentiality Agreement)Section 6.03 hereof, (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, take and disclose to the Company’s stockholders, Company Stockholders a position with respect to any tender offer or exchange offer contemplated by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange 1934 Act or otherwise complying with its disclosure obligations and/or (provided that z) take any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in each case only if the Board shall not recommend that of Directors or the Special Committee determines, in good faith after consultation with outside legal counsel to the Company’s stockholders tender their shares of capital stock , that such action is required in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))exercise of its respective fiduciary duties under applicable law.
Appears in 2 contracts
Samples: Recapitalization Agreement (Mascotech Inc), Recapitalization Agreement (Mascotech Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company The Employee shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage indirectly solicit an ---------------- employee or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records consultant of the Company to terminate his or her employment or contractual relationship with the Company Subsidiaries toand become employed or engaged by the Employee or any other person or entity in substantially the same or a similar business as that engaged in by the Company if such employment would involve the performance of services and duties substantially the same or similar to those the employee or consultant performed for the Company. EXHIBIT E PROMISSORY NOTE --------------- $ Dated as of -------------- -------------- FOR VALUE RECEIVED, any Person that made a Company Takeover Proposal or intending to any Person that has disclosed be legally bound, the undersigned ("Maker") hereby promises to pay to the Company that it is contemplating making a Company Takeover Proposalorder of SMT Health Services Inc., its successors and assigns (hereinafter referred to as "Payee") upon the schedule set forth below, the principal sum of Dollars ($ ), together ----- ---------- with interest on the unpaid principal amount of this Promissory Note from time to time outstanding. The unpaid principal amount of this Promissory Note shall bear interest at the rate of [APPLICABLE LONG TERM FEDERAL RATE] per annum. Maker shall pay to Payee the entire principal amount and all accrued interest on [THE TENTH ANNIVERSARY OF THE DATE OF THE NOTE]. Payments shall be made to Payee at the principal office of the Payee or such other place as Payee may designate in writing to Maker, in lawful money of the United States of America in immediately available funds without set-off, counterclaim or other deduction of any nature. Maker may prepay this Promissory Note at any time in whole or in part without payment of penalty; provided, however, that, prior that any such prepayment of principal shall be accompanied by the payment of interest accrued to the consummation date of such prepayment and all costs, expenses or charges then owed to Payee pursuant to this Promissory Note. Upon the occurrence of any one of the Merger, in addition to Section 5.02(bfollowing events ("Events of Default"), the Company mayentire principal amount outstanding and all accrued interest thereunder shall at the option of Payee, without any prior notice, presentment or demand, become immediately due and payable in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).full:
Appears in 2 contracts
Samples: Employment Agreement (SMT Health Services Inc), Employment Agreement (Alliance Imaging Inc /De/)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or permit any Representative officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary (collectively, "Company Subsidiary Representatives") to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, : (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of of, any Company Takeover Proposal, Proposal (as defined below); (ii) enter into any agreement with respect to any Company Takeover Proposal Proposal; or (iii) participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, at any time prior to the consummation of the Merger, in addition to Section 5.02(b)Offer, the Company Company's Board of Directors may, in response to an unsolicited bona fide a Superior Proposal (as defined below) that was not solicited by the Company Takeover Proposal which or any Company Representative on or after the date hereof and that did not otherwise result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal5.2(a), and subject to providing prior written notice of its decision to take such action to Parent and compliance with Section 5.02(c5.2(b), (x) participate in discussions and negotiations regarding such Superior Proposal and furnish information with respect to concerning the Company to the person Person making such Superior Proposal. For purposes of this Agreement, "Takeover Proposal" means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business that constitutes 25% or more of the net revenues, net income or the assets of the Company Takeover Proposal and its Representatives pursuant to the Subsidiaries taken as a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in whole, or 25% or more of any class of equity securities of the Confidentiality Agreement)Company or any Subsidiary, (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer that if consummated would result in any Person beneficially owning 25% or more of any class of equity securities of the Company or any Subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Subsidiary, other than the transactions contemplated by this Agreement. For purposes of this Agreement, a "Superior Proposal" means any bona fide proposal made by a third party to acquire, directly or amend indirectly, including pursuant to a tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, dissolution or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under similar transaction, for consideration consisting of cash and/or securities, 100% of the Exchange Act (provided that outstanding shares of Common Stock or all or substantially all the assets of the Company and otherwise on terms which the Board shall not recommend that of Directors determines in its good faith judgment (based on the written advice of its financial advisors) (x) is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the third party making such proposal, and (y) provides greater present value to the Company’s 's stockholders tender their shares of capital stock in than the Company in connection with cash consideration to be received by such tender offer or exchange unless stockholders pursuant to the Company has complied with Section 5.02(b))Offer and the Merger, as the Offer and the Merger may be amended from time to time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (D&b Acquisition Sub Inc), Agreement and Plan of Merger (Dave & Busters Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary toof its directors, nor shall it authorize officers or permit any Representative of, the Company employees or any Company Subsidiary toinvestment banker, and the Company shall cause financial advisor, attorney, accountant or other advisor, agent or representative (collectively, “Representatives”) retained by it or any of its and the Company Subsidiaries’ Representatives not Affiliates to, directly or indirectlyindirectly through another person, (i) solicit, initiate, negotiate, knowingly encourage initiate or knowingly facilitate (including by way of furnishing non-public information) the submission of encourage, or take any Company other action designed to, or which would reasonably be expected to, facilitate, any Takeover Proposal, Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any information information, or otherwise cooperate in any way with, any Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company shall be a breach of this Section 4.02(a) by the Company. The Company shall immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect toto any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Stockholder Approval, in response to a bona fide written Takeover Proposal that the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may would reasonably be expected to lead to, any Company Takeover to a Superior Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company and which Takeover Proposal or to any Person that has disclosed to was not solicited after the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to date hereof and was made after the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which date hereof and did not otherwise result from a breach of this Section 5.02(a) and which 4.02(a), the Company may, if its Board determines, of Directors determines in good faith, faith (after consultation with outside counsel) that it is required to do so in order to comply with its outside legal counsel and financial advisors, is, or may reasonably be expected fiduciary duties to lead to, a Superior the stockholders of the Company Proposalunder applicable law, and subject to compliance with Section 5.02(c4.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal (and its Representatives Representatives) pursuant to a customary confidentiality agreement (which (A) need not restrict such person from making an unsolicited Takeover Proposal and (B) shall have terms and conditions no permit the Company to comply with Section 4.02(c)) not less favorable restrictive of such person than those in the Confidentiality Agreement); provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives Representatives) regarding any Company such Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Closure Medical Corp), Agreement and Plan of Merger (Closure Medical Corp)
No Solicitation. (a) As of the date hereof, the Company shall immediately cease any discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal and, if applicable, shall seek to have returned to the Company any confidential information that had been provided in any such discussions or negotiations. From and after the date hereof until the earlier to occur of the Acceptance Time or the date of termination of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to in accordance with Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or permit any Representative ofof its officers, the Company directors or employees or any Company Subsidiary toAffiliate, and the Company shall cause investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect towhich has not been previously publicly disseminated), or take any other action designed to facilitate facilitate, any inquiries inquiry or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding, merger agreement or afford access other agreement, arrangement or understanding relating to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement) or to (iii) enter into, continue or otherwise participate in any Person that has disclosed to the Company that it is contemplating making a Company discussions or negotiations regarding any Takeover Proposal; provided, however, thatthat if, prior to the consummation Acceptance Time, following the receipt of a Superior Proposal or a Takeover Proposal that the Company Board determines in good faith is reasonably expected to lead to a Superior Proposal, and the Company Board determines in good faith, after consultation with outside legal counsel, that a failure to take action with respect to such Takeover Proposal would be inconsistent with its fiduciary duties (it being understood that, for all purposes of this Agreement, references to fiduciary duties of the Merger, in addition Company Board shall include the duties of individual directors under the MGCL) to Section 5.02(b)the Company and its stockholders under applicable Law, the Company may, in response to an unsolicited bona fide Company such Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c6.3(c), (xA) furnish information with respect to the Company to the person party making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no an “Acceptable Confidentiality Agreement”) that contains provisions not less favorable to the Company in all material respects than those contained in the Confidentiality Agreement), ; provided that such Acceptable Confidentiality Agreement need not include a comparable standstill provision if the Company (x) waives the standstill provisions of the Confidentiality Agreement in favor of Parent or (y) participate similarly modifies the standstill provisions of the Confidentiality Agreement applicable to Parent, and (B) engage in discussions or negotiations with such person and its Representatives party regarding such Takeover Proposal. It is agreed that any violation of the restrictions set forth in the preceding sentence by any officers, directors or employees or any Affiliate, investment banker, financial advisor, attorney, accountant or other Representative of the Company Takeover Proposal and (zor any of the Company Subsidiaries shall be deemed to be a breach of this Section 6.3(a) take, and disclose to by the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hillshire Brands Co), Agreement and Plan of Merger (Tyson Foods Inc)
No Solicitation. (a) From the date of this Agreement ACC shall, and shall direct and use commercially reasonable efforts to the Effective Timecause its officers, unless this Agreement is terminated earlier pursuant directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to Article VIII, the Company an ACC Takeover Proposal (as hereinafter defined). ACC shall not, nor shall it authorize or permit any Company Subsidiary of its subsidiaries to, nor shall it authorize or permit any Representative ofof its officers, the Company directors or employees or any Company Subsidiary toinvestment banker, and the Company shall cause financial advisor, attorney, accountant or other representative retained by it or any of its and the Company Subsidiaries’ Representatives not subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to), or take any other action designed or reasonably likely to facilitate facilitate, including, without limitation, any amendment, modification or termination, or any agreement to do any of the foregoing, to the ACC Rights Plan or any redemption of the Rights, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company ACC Takeover Proposal or to (ii) participate in any Person that has disclosed to the Company that it is contemplating making a Company discussions or negotiations regarding any ACC Takeover Proposal; provided, however, thatthat if, at any time prior to the consummation time of the Merger, in addition to Section 5.02(b)ACC Stockholders Meeting, the Company Board of Directors of ACC determines in good faith, upon advice from outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to ACC's stockholders under applicable law, ACC may, in response to an unsolicited bona fide Company ACC Takeover Proposal or material modification to an ACC Takeover Proposal, which did ACC Takeover Proposal or material modification was made after the date hereof and was not result from a breach of this Section 5.02(a) and which solicited after the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposaldate hereof, and subject to compliance with Section 5.02(c4.8(c), (x) furnish information with respect to the Company ACC to the any person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (agreement, which shall have terms and conditions no less favorable than those in either was executed prior to the date hereof or is substantially similar to the Confidentiality Agreement)Agreement dated as of November 13, 1997 by and between ACC and TCG and (y) participate in discussions or negotiations with regarding such person and its Representatives regarding any Company ACC Takeover Proposal and (z) take, and disclose to or material modification made after the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).date hereof. "
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Teleport Communications Group Inc), Agreement and Plan of Merger (Acc Corp)
No Solicitation. From and after the date hereof until the Expiration Date, each Stockholder shall not (a) From solicit, initiate or knowingly encourage, induce or facilitate the date communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry regarding the Company or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (b) furnish any non-public information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (c) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry regarding the Company (other than to inform any Person of the existence of the provisions in this Section 7), (d) approve, endorse or recommend any Acquisition Proposal (subject to Section 6.2 of the Merger Agreement), (e) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction regarding the Company (subject to Section 5.4 of the Merger Agreement), (f) take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry, (g) initiate a stockholders’ vote or action by consent of the Company’s stockholders with respect to an Acquisition Proposal regarding the Company, (h) except by reason of this Agreement Agreement, become a member of a “group” (as such term is defined in Section 13(d) of the Exchange Act) with respect to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, any voting securities of the Company that takes any action in support of an Acquisition Proposal regarding the Company, or (i) propose or agree to do any of the foregoing. In the event that such Stockholder is a corporation, partnership, trust or other Entity, it shall not, nor shall it authorize or not permit any Company Subsidiary of its Subsidiaries or Affiliates to, nor shall it authorize any officer, director or permit any Representative ofrepresentative of such Stockholder, the Company or any Company Subsidiary of its Subsidiaries or Affiliates to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of undertake any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of actions contemplated by this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))7.
Appears in 2 contracts
Samples: Support Agreement (Talaris Therapeutics, Inc.), Support Agreement (Talaris Therapeutics, Inc.)
No Solicitation. (a) From the date of this Agreement Prior to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIITermination Date, the Company Stockholder (in the Stockholder’s capacity as such) shall not, nor directly or indirectly, and shall it authorize not cause or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause of its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the making, submission or announcement of any Company Takeover ProposalAcquisition Proposal or Acquisition Inquiry, (ii) enter into furnish any agreement non-public information regarding the Acquired Entities to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry, (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Acquisition Proposal or Acquisition Inquiry, (iv) approve, endorse or recommend any Acquisition Proposal or (iiiv) participate in enter into any discussions letter of intent or negotiations regarding, similar document or furnish to any person Contract contemplating or providing for any information with respect to, Acquisition Transaction or take accepting any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however, that, prior that none of the foregoing restrictions shall apply to the consummation Stockholder’s and its Representatives’ interactions with Parent, Acquisition Sub and their respective Representatives; provided further, however that the Stockholder may engage in any of the Merger, foregoing activities if and solely to the extent that the Company is permitted to engage in addition such activities pursuant to Section 5.02(b)5.3 of the Merger Agreement. Without limiting the generality of the foregoing, the Company mayStockholder acknowledges and agrees that any action taken by any of its Representatives, in response to an unsolicited bona fide Company Takeover Proposal which did not result from if taken by the Stockholder, would constitute a breach of this Section 5.02(a) 7.3, shall be deemed to constitute a breach of this Section 7.3 by the Stockholder (whether or not such Representative is purporting to act on behalf of the Stockholder). Except as permitted by the Merger Agreement, the Stockholder shall immediately cease any and which the Company Board determinesall existing activities, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position Persons conducted heretofore with respect to any tender offer Acquisition Inquiry or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Acquisition Proposal.
Appears in 2 contracts
Samples: Tender and Voting Agreement, Tender and Voting Agreement (Tufco Technologies Inc)
No Solicitation. (a) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII8, the Company Company, its Subsidiaries and their affiliates shall not, nor and shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, use best efforts to cause the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal information or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), or take any other action to facilitate facilitate, any inquiries inquiry in connection with or the making of any proposal from any Person that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal (as defined in Section 6.08(f)), (ii) enter into, explore, maintain, participate in or continue any Company Takeover discussion or negotiation with any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) regarding an Acquisition Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or furnish to any Person that has disclosed (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) any non-public information or otherwise assist or participate in, facilitate or encourage, any known effort or attempt by any other Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) to the make or effect an Acquisition Proposal, (iii) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal, or (iv) authorize or permit any Company that it is contemplating making a Company Takeover ProposalRepresentative to take any such action; provided, however, thatthat nothing contained in this Section 6.08 shall prohibit the Company Board, based upon the recommendation of the Special Committee, prior to approval of this Agreement by the consummation shareholders of the MergerCompany at the Shareholders Meeting, from furnishing information to, or engaging in addition to Section 5.02(b)discussions or negotiations with, the Company may, in response to any Person that makes an unsolicited bona fide Company Takeover written Acquisition Proposal (which did not result from a breach of this Section 5.02(a6.08) and which if (A) the Company Board determinesBoard, based upon the recommendation of the Special Committee, determines in good faith, faith after consultation with its financial advisors and outside legal counsel and financial advisors, isthat such action is necessary for the Company Board to comply with its fiduciary duties to the Company's shareholders under applicable law, (B) the Acquisition Proposal constitutes or may would reasonably be expected to lead to a Superior Proposal (as defined in Section 6.08(g)) and (C) prior to furnishing such information to, a Superior Company Proposalor engaging in discussions or negotiations regarding an Acquisition Proposal or the Transactions with, and subject to compliance with Section 5.02(c)such Person, (x) furnish information with respect to the Company to the person making receives from such Company Takeover Proposal and its Representatives pursuant to a customary Person an executed confidentiality agreement (which agreement shall have be provided to Parent for information purposes) with terms and conditions no less favorable to the Company than those contained in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Acquisition Agreement And (GMM Capital LLC), Acquisition Agreement And (GMM Capital LLC)
No Solicitation. (a) From Each Stockholder hereby agrees that during the date term of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company it shall not, nor and shall it authorize or not permit any Company Subsidiary of its Subsidiaries, Affiliates or Representatives to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) initiate, solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public providing information) the submission of any Company Takeover Proposalinquiries, proposals or offers (iiwhether firm or hypothetical) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries efforts or the making of any proposal attempts that constitutes, constitute or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal, (ii) have any discussions with or provide any confidential information or data to any person relating to an Acquisition Proposal, or afford access engage in any negotiations concerning an Acquisition Proposal, (iii) approve or recommend, or publicly propose to properties, books approve or records of the Company or the Company Subsidiaries torecommend, any Person that made a Company Takeover Proposal Acquisition Proposal, (iv) approve or recommend, or publicly propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, memorandum of understanding, merger agreement, asset or share purchase or share exchange agreement, option agreement or other similar agreement related to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however(v) enter into any agreement or agreement in principle requiring, that, prior to the consummation of the Merger, in addition to Section 5.02(b)directly or indirectly, the Company mayto abandon, terminate or fail to consummate the transactions contemplated by the Merger Agreement or breach its obligations thereunder, (vi) make or participate in, directly or indirectly, a “solicitation” of “proxies” (as such terms are used in response the rules of the SEC) or powers of attorney or similar rights to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, isvote, or may reasonably be expected seek to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information advise or influence any Person with respect to the voting of, any shares of Common Stock in connection with any vote or other action on any matter, other than to recommend that stockholders of the Company vote in favor of the adoption of the Merger Agreement and as otherwise expressly provided in this Agreement, or (vii) publicly propose or agree to do any of the person making such Company Takeover Proposal foregoing. Each Stockholder hereby agrees immediately to cease and its Representatives pursuant cause to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement)be terminated any activities, (y) participate in discussions or negotiations conducted before the date of this Agreement with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position Persons other than Acquiror with respect to any tender offer Acquisition Proposal, and will take the necessary steps to inform its Affiliates and Representatives of the obligations undertaken by such Stockholder pursuant to this Agreement, including this Section 4.3. Each Stockholder also agrees that any violation of this Section 4.3 by any of its Affiliates or exchange offer Representatives shall be deemed to be a violation by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares Stockholder of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with this Section 5.02(b))4.3.
Appears in 2 contracts
Samples: Voting Agreement (optionsXpress Holdings, Inc.), Voting Agreement (Schwab Charles Corp)
No Solicitation. (a) From the date hereof until the Effective Time or, if earlier, the termination of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIIX, the Company shall notnot (whether directly or indirectly through advisors, nor shall it authorize agents or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary toother intermediaries), and the Company shall cause its and respective officers, directors, advisors, representatives or other agents of the Company Subsidiaries’ Representatives not to, directly or indirectly, (ia) solicit, initiate, negotiate, initiate or knowingly encourage any Acquisition Proposal (as defined herein) or knowingly facilitate (including by way of furnishing b) engage in discussions or negotiations with, or disclose any non-public information) information relating to the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, its Subsidiaries or afford access to the properties, books or records of the Company or the Company its Subsidiaries to, any Person that has made a Company Takeover an Acquisition Proposal or to any Person that has disclosed to advised the Company that it is contemplating interested in making a Company Takeover an Acquisition Proposal; provided, however, provided that, prior to if and only if (i) the consummation Company's Board of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, Directors believes in good faith, after based on such matters as it deems relevant, including the advice of the Company's financial advisor, that such Acquisition Proposal is a Financially Superior Proposal (as defined herein) and (ii) the Company's Board of Directors determines in good faith, based on such matters as it deems relevant, including consultation with its the Company's outside legal counsel counsel, that the failure to engage in such negotiations or discussions or provide such information is a breach of the fiduciary duties of the Board of Directors of the Company under applicable Law, then the Company may engage in any act otherwise proscribed by clause (b) above. The Company shall as promptly as practicable provide Acquiror with a copy of any written Acquisition Proposal received and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information written statement with respect to any nonwritten Acquisition Proposal received, which statement shall include the Company to identity of the person Person making such Company Takeover the Acquisition Proposal and its Representatives pursuant to a customary confidentiality agreement (which the material terms thereof. The Company shall have inform Acquiror as promptly as practicable of any change in the price, structure, form of consideration or material terms and conditions no less favorable regarding the Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation, recapitalization, liquidation or other business combination involving the Company or any of its Material Subsidiaries (as defined herein) or the acquisition or purchase of 20% or more of any class of equity securities of the Company or any of its Material Subsidiaries, or any tender offer or exchange offer, that, if consummated, would result in any Person (other than those Acquiror and its affiliates) beneficially owning 20% or more of any class of equity securities of the Company or any of its Material Subsidiaries, or the acquisition, license or purchase of a substantial portion of the technology, business or assets of the Company and its Subsidiaries, other than the transactions contemplated by this Agreement and other than in the Confidentiality ordinary course of business. As used herein, a "Financially Superior Proposal" shall mean an Acquisition Proposal which in the reasonable judgment of the Company's Board of Directors, based on such matters as it deems relevant, including the advice of the Company's financial advisor, (i) will result in a transaction providing aggregate value greater than that provided pursuant to this Agreement and (ii) is reasonably capable of being financed by the Person making such Acquisition Proposal. As used herein, "Material Subsidiary" means any Subsidiary of the Company whose consolidated revenues, net income or assets constitute 20% or more of the revenues, net income or assets of the Company and its Subsidiaries, taken as a whole. Nothing in this Agreement, including Section 6(g), (y) participate in discussions shall prohibit the Company or negotiations with such person the Company's Board of Directors from taking and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose disclosing to the Company’s stockholders, 's stockholders a position with respect to any a tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule pursuant to Rules 14d-9 and Rule 14e-2 14e-2(a) promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))from making any disclosure required by an applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (America Online Inc), Agreement and Plan of Merger (America Online Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, agrees that neither it nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize any of their respective directors or permit any Representative of, the Company or any Company Subsidiary toofficers shall, and the Company shall use its reasonable best efforts to cause its and the Company Subsidiaries’ other Representatives not to, directly or indirectlyindirectly through another person, (i) solicit, initiate, negotiate, knowingly encourage initiate or knowingly facilitate (including by way of furnishing non-public information) the submission of encourage, or knowingly facilitate, any Company Takeover ProposalProposal or the making or consummation thereof, (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect toin connection with, or take otherwise knowingly cooperate in any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toway with, any Company Takeover Proposal, (iii) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or afford access to propertiesother similar anti-takeover statute or regulation (including any transaction under, books or records a third party becoming an “interested shareholder” under, Section 203 of the Company DGCL), or any restrictive provision of any applicable anti-takeover provision in the Company Subsidiaries toCertificate or Company Bylaws, inapplicable to any Person that made transactions contemplated by a Company Takeover Proposal or (iv) resolve, publicly propose or agree to do any of the foregoing. The Company shall, and shall cause the Company Subsidiaries and its and their directors and officers to, and shall use its reasonable best efforts to cause its and their Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Person that has disclosed Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing, at any time prior to obtaining the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company mayStockholder Approval, in response to an unsolicited bona fide written Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which that the Company Board determines, determines in good faith, after consultation with its outside legal counsel and financial advisors, is, constitutes or may could reasonably be expected to lead to, to a Superior Company Proposal, and which Company Takeover Proposal was made after the date hereof, has not been withdrawn and did not otherwise result from a breach in any material respect of this Section 5.03(a), the Company may, subject to compliance with this Section 5.02(c)5.03, (xX) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal (and its Representatives representatives) pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the an Acceptable Confidentiality Agreement), provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person, and (yY) participate in discussions or negotiations with the person making such person and its Representatives regarding any Company Takeover Proposal (and its representatives) regarding such Company Takeover Proposal, if (and only if) and only to the extent that before taking any of the actions described in the foregoing clauses (X) and (z) takeY), and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend determines in good faith, after consultation with its outside legal counsel, that the Company’s stockholders tender their shares of capital stock in the Company in connection failure to take such action could reasonably be determined to be inconsistent with such tender offer or exchange unless the Company has complied with Section 5.02(b))its fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Arbitron Inc), Agreement and Plan of Merger (Nielsen Holdings N.V.)
No Solicitation. (a) From and after the date of this Agreement to until the Effective Time, unless Closing or termination of this Agreement is terminated earlier pursuant to Article VIIIIX, the Company shall Parent and its subsidiaries will not, nor shall it will they authorize or permit any Company Subsidiary toof their respective officers, nor shall it authorize directors, affiliates or permit any Representative of, the Company employees or any Company Subsidiary toinvestment banker, and the Company shall cause its and the Company Subsidiaries’ Representatives not attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) induce the making, submission or announcement of any Company Takeover ProposalParent Acquisition Proposal (as hereinafter defined), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover constitutes an Parent Acquisition Proposal, (iii) engage in discussions with any person with respect to any Parent Acquisition Proposal, except as to the existence of these provisions, (iv) except as set forth in Section 5.2(c), approve, endorse or afford access to properties, books or records of the Company or the Company Subsidiaries to, recommend any Person that made a Company Takeover Parent Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Parent Acquisition Proposal; provided, however, that, that prior to the consummation approval of the MergerParent Stockholder Approval at the Parent Stockholders' Meeting, in addition Parent may furnish nonpublic information regarding Parent and its subsidiaries to, or enter into discussions or negotiations with, any person or group who has submitted (and not withdrawn) to Section 5.02(b)Parent an unsolicited, the Company maywritten, in response to an unsolicited bona fide Company Takeover Parent Acquisition Proposal which did not result from that the Board of Directors of Parent reasonably concludes (after consultation with a breach financial advisor of national standing) may constitute a Superior Offer if (1) neither Parent nor any representative of Parent and its subsidiaries shall have violated any of the restrictions set forth in this Section 5.02(a5.4, (2) and which the Company Board determines, of Directors of Parent concludes in good faith, after consultation with its outside legal counsel and financial advisorscounsel, isthat such action is required in order for the Board of Directors of Parent to comply with its fiduciary obligations to Parent's stockholders under applicable law, (3) 36 hours prior to furnishing any such nonpublic information to, or may reasonably be expected to lead toentering into any such discussions with, a Superior Company Proposalsuch person or group, Parent gives VHA and subject to compliance with Section 5.02(c), (x) furnish information with respect to UHC written notice of the Company to identity of such person or group and all of the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have material terms and conditions no less favorable than those in the Confidentiality Agreement)of such Parent Acquisition Proposal and of Parent's intention to furnish nonpublic information to, (y) participate in or enter into discussions with, such person or group, and Parent receives from such person or group an executed confidentiality agreement containing customary terms. Parent and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position parties conducted heretofore with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under Parent Acquisition Proposal. Without limiting the Exchange Act (provided foregoing, it is understood that any violation of the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock restrictions set forth in the Company in connection with such tender offer preceding two sentences by any officer, director or exchange unless the Company has complied with employee of Parent or any of its subsidiaries or any investment banker, attorney or other advisor or representative of Parent or any of its subsidiaries shall be deemed to be a breach of this Section 5.02(b5.4(a)).
Appears in 2 contracts
Samples: Common Stock and Warrant Agreement (Vha Inc), Common Stock and Warrant Agreement (Neoforma Com Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall and its Subsidiaries will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall will direct and use its reasonable best efforts to cause its and the Company its Subsidiaries’ Representatives respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal (including without limitation by amending, or may reasonably be expected granting any waiver under, Article TWELFTH of the Company Charter or Section 203 of the DGCL) or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto (except to lead tonotify such Person of the existence of the provisions of this Section 7.8), or disclose any Company Takeover Proposal, nonpublic information or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed made, or to the Company’s knowledge is considering making, any Acquisition Proposal, or propose publicly or agree to do any of the foregoing relating to an Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company that it is contemplating from (i) complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal or (ii) making a Company Takeover Proposalany disclosure if, in the case of this clause (ii), in the good faith judgment of the Company’s Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided, however, thatthat any such disclosure that relates to an Acquisition Proposal shall be deemed to be a Change in the Company Recommendation unless the Company’s Board of Directors reaffirms the Company Recommendation in such disclosure. Notwithstanding anything to the contrary in this Agreement but subject to the first sentence of Section 7.8(b), prior to (but not after) the consummation date of the Merger, in addition to Section 5.02(b)Company Stockholder Approval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information and access, but only in response to an unsolicited a request for information or access, to any Person making a bona fide fide, written Acquisition Proposal to the Board of Directors of the Company Takeover Proposal after the date hereof which did was not obtained as a result from of a breach of Section 5.2 or this Section 5.02(a) 7.8 and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (yB) participate in discussions or negotiations and negotiate with such person Person or its representatives concerning any such unsolicited Acquisition Proposal, if and its Representatives regarding only if, in any Company Takeover Proposal and such case set forth in clause (zA) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares B) of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).this sentence,
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Noble Energy Inc), Agreement and Plan of Merger (Noble Energy Inc)
No Solicitation. (a) From the date of this Agreement to until the earlier of (i) the Effective TimeTime and (ii) the date of the termination of the Merger Agreement, unless this Agreement is terminated earlier pursuant to Article VIII, the Company each Shareholder agrees that it shall not, nor and shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary tocause each of its Affiliates, and the Company shall cause its and the Company Subsidiaries’ their respective Representatives not to, directly or indirectly, indirectly (iA) solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission making of any Company proposal that constitutes or is reasonably likely to lead to a Takeover Proposal, (iiB) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any of the Company’s or its Subsidiaries’ confidential information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesTakeover Proposal, or may (C) enter into any Takeover Proposal Documentation with respect to a Takeover Proposal. Notwithstanding the foregoing, if the Company Board of Directors has determined, after consultation with its financial advisor and outside counsel, that an unsolicited bona fide written Takeover Proposal constitutes or would reasonably be expected to lead to, any Company Takeover to a Superior Proposal, or afford access to properties, books or records of if the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, participating in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) discussions and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, isnegotiations with, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish furnishing information with respect to the Company to the person making such Company Takeover Proposal pursuant to and in compliance with Section 6.06 of the Merger Agreement, then, notwithstanding clauses (A) and (B) above, such Shareholder, its Affiliates and their respective Representatives may also participate in discussions and negotiations with, and furnish information to, the person making such Takeover Proposal at the request and direction of the Special Committee of the Company Board of Directors. Each Shareholder and its Representatives pursuant Affiliates, and its and their respective Representatives, shall immediately cease and cause to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in be terminated all discussions or negotiations with such any person and its Representatives regarding any Company Takeover Proposal and conducted heretofore (zother than with Parent) take, and disclose to the Company’s stockholders, a position with respect to any tender offer Takeover Proposal, except to the extent any discussions or exchange offer negotiations by a third party or amend or withdraw and among the parties to the A&R SSCSA are required pursuant to the terms of such position agreement as in accordance with Rule 14d-9 and Rule 14e-2 promulgated under effect as of the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))date hereof.
Appears in 2 contracts
Samples: Voting and Support Agreement (Protective Insurance Corp), Voting and Support Agreement (Shapiro Steven A.)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or take any other action to knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement agreement, letter of intent, term sheet or other similar instrument with respect to any Company Takeover Proposal or (iii) enter into, continue, conduct, engage or otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or otherwise knowingly take any other action to facilitate any inquiries or the making of facilitate, any proposal that constitutes, or may could reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided. The Company shall, howeverand shall cause the Company Subsidiaries and direct its Representatives to, thatimmediately cease and cause to be terminated all existing discussions and negotiations with any person conducted heretofore with respect to any Company Takeover Proposal and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing, prior to the consummation acceptance for payment of shares of Company Common Stock pursuant to the Merger, in addition to Section 5.02(b)Offer, the Company and its Representatives may, in response to an unsolicited a bona fide written Company Takeover Proposal that the Company Board determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisor, constitutes or could reasonably be expected to lead to a Superior Company Proposal, and which Company Takeover Proposal was made after the date hereof and did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal5.03(a), and subject to compliance with Section 5.02(c5.03(c), (x) provide access or furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms an Acceptable Confidentiality Agreement and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations (including solicitation of a revised Company Takeover Proposal) with such person and its Representatives regarding any such Company Takeover Proposal Proposal. The Company will provide Parent and (z) take, and disclose U.S. Parent with all non-public information regarding the Company that has not previously been provided to the Company’s stockholders, a position with respect Parent or U.S. Parent that is provided to any tender offer or exchange offer by a third party or amend or withdraw person making such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cgi Group Inc), Agreement and Plan of Merger (Stanley, Inc.)
No Solicitation. (a) From The Company shall, and shall cause the date Company Subsidiaries and the respective officers, directors, employees, representatives and agents of this Agreement the Company and the Company Subsidiaries to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the a Takeover Proposal (as hereinafter defined). The Company shall not, nor shall it authorize or permit any of the Company Subsidiary Subsidiaries to, nor shall it authorize or permit any Representative ofof the respective officers, directors or employees of the Company or any Company Subsidiary to, and the Company shall cause its and Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement information other than publicly available information provided pursuant to routine stockholder requests consistent with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect topast practice), or take any other action designed or reasonably likely to facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to (ii) participate in any Person that has disclosed to the Company that it is contemplating making a Company discussions or negotiations regarding any Takeover Proposal; provided, however, thatthat if, at any time prior to the consummation Expiration Date and following the receipt of a Superior Proposal (as hereinafter defined), the Board of Directors of the MergerCompany determines in good faith, in addition based upon the advice of outside counsel, that such action is consistent with the Board of Directors' fiduciary duties to Section 5.02(b)the Company's stockholders under applicable Law, the Company may, in response to an unsolicited bona fide Company Takeover a Superior Proposal which did that was made in circumstances not result from otherwise involving a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company ProposalAgreement, and subject to compliance with Section 5.02(c4.8(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the any person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have having terms and conditions no less favorable than those in substantially the same as the Confidentiality AgreementAgreement (as hereinafter defined), provided that (yi) participate in discussions or negotiations such confidentiality agreement may not include any provision calling for an exclusive right to negotiate with such person and its Representatives regarding any the Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(bii)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Em Industries Inc), Agreement and Plan of Merger (Cn Biosciences Inc)
No Solicitation. (a) From the date of this Agreement to until the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIClosing Date, the Company shall agrees that it will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectlyindirectly through any officer, Subsidiary, Affiliate, director, employee, stockholder, representative, agent or other person, (i) solicitseek, initiate, negotiate, knowingly solicit or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Person to make an Acquisition Proposal, (ii) enter into engage in negotiations or discussions concerning an Acquisition Proposal with any agreement with respect to any Company Takeover Proposal person or group, (iii) participate in disclose any discussions non-public information relating to the Company or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford give access to the properties, employees, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover of its subsidiaries to any person or group in connection with any Acquisition Proposal or (iv) approve or recommend or agree to approve or recommend any Acquisition Proposal; provided that nothing herein shall prevent the Board of Directors or a committee thereof from (A) furnishing information to any Person person that has disclosed made an Acquisition Proposal not solicited in violation of this paragraph or (B) subject to the other provisions of this paragraph, entering into or participating in discussions or negotiations concerning an Acquisition Proposal not solicited in violation of this paragraph so long as, in any case, (x) the Board of Directors or such committee shall have concluded in good faith (after receiving and considering the advice of its outside legal counsel) that failing to participate in such discussions or negotiations or furnishing such information would cause the Board of Directors or such committee to be in breach of its fiduciary duties to the Company that it is contemplating making a Company Takeover Proposal; providedShareholders under applicable law, however, that, and (y) prior to the consummation of the Merger, participating in addition to Section 5.02(b)such discussions or negotiations or furnishing any such information, the Company mayand the party making such offer agrees to a confidentiality agreement on terms that are, in response the aggregate, no less favorable to an unsolicited bona fide the Company Takeover Proposal which did not result from a breach than those of this Section 5.02(athe Confidentiality Agreement (other than the standstill provisions thereof) and which the Company New Investor is given concurrent or advance written no- tice xxxreof unless the Board determines, of Directors or such committee shall have concluded in good faith, after consultation with receiving and considering the advice of its outside legal counsel and financial advisorscounsel, is, that doing so would cause it to be in breach of its fiduciary responsibilities to the Company Shareholders under applicable law. The Board of Directors or such committee may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect fail to make, withdraw or modify in a manner adverse to the Company New Investor its recommendation to the person making such Company Takeover Proposal and its Representatives pursuant stockholders referred to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement)Section 5.03, (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, take and disclose to the Company’s stockholders, Company Shareholders a position with respect to any tender offer or exchange offer contemplated by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange 1934 Act or otherwise complying with its disclosure obligations and/or (provided that z) take any non-appealable, final action ordered to be taken by the Company by any court of competent jurisdiction, but in the case of clause (x) or (y) only if the Board shall not recommend that of Directors or such committee determines, in good faith after consultation with outside legal counsel to the Company’s stockholders tender their shares , that such action is consistent with the exercise of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))its fiduciary duties under applicable law.
Appears in 2 contracts
Samples: Share Purchase Agreement (Cypress Capital Advisors LLC), Share Purchase Agreement (Collins & Aikman Corp)
No Solicitation. (a) From the date of this Agreement to hereof until the Effective Timetermination hereof, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, will not and will cause its Subsidiaries and the officers, directors, employees, investment bankers, consultants and other agents of Company shall cause and its and the Company Subsidiaries’ Representatives Subsidiaries not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal or any inquiry with respect thereto or engage in discussions or negotiations with any person with respect thereto, or may reasonably be expected disclose any non-public information relating to lead to, Company or any Company Takeover Proposal, of its Subsidiaries or afford access to the properties, books or records of the Company or the Company any of its Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person person that has disclosed to the Company that it is contemplating making a Company Takeover made any Acquisition Proposal; providedprovided that nothing contained in this Section 5.05 shall prevent Company from furnishing non-public information to, howeveror entering into discussions or negotiations with, that, prior to the consummation of the Merger, any person in addition to Section 5.02(b), the Company may, in response to connection with an unsolicited bona fide Acquisition Proposal received from such person that the Company Takeover Board determines in good faith is reasonably likely to lead to a Superior Proposal, so long as prior to furnishing non-public information to, or entering into discussions or negotiations with, such person, Company receives from such person an executed confidentiality agreement with terms no less favorable to Company than those contained in the Parent Confidentiality Agreement; provided, further that nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14e-2 or 14d-9 under the 1934 Act with regard to an Acquisition Proposal. Company will promptly notify (which notice shall be provided orally and in writing and shall identify the person making such Acquisition Proposal and set forth the material terms thereof) Parent, within 24 hours after receipt of any Acquisition Proposal or any request for nonpublic information relating to Company or any of its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person that may be considering making, or has made, an Acquisition Proposal if Company is prepared to provide such person with access to such nonpublic information or properties, books or records. Company shall give Parent two business days' advance notice (which did notice shall include the terms and conditions of such proposal with respect to an Acquisition Proposal) of any definitive agreement providing for an Acquisition Proposal to be entered into with any person or entity making any such inquiry, offer or proposal. Company shall not result from a breach be permitted to terminate this Agreement pursuant to Section 7.01(d)(1) unless it shall have satisfied the obligations of this Section 5.02(a) 5.05 and which prior to any such termination, Company shall, and shall cause its financial and legal advisors to, during the two business day period referenced in the preceding sentence, negotiate in good faith with Parent to make such adjustments in the terms and conditions of this Agreement as would enable Company to proceed with the transactions contemplated herein. Company will, and will cause the other persons listed in the first sentence of this Section 5.05 to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the date hereof with any parties with respect to any Acquisition Proposal. Subject to compliance with their fiduciary duties, as determined in good faith by the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company ProposalBoard, and subject to compliance with the exceptions set forth in this Section 5.02(c)5.05, (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that authorize Company to waive any standstill or confidentiality provisions contained in agreements to which Company is a party or to which Company is subject, other than the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Parent Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hannaford Brothers Co), Agreement and Plan of Merger (Food Lion Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall and its Subsidiaries will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall will direct and use its reasonable best efforts to cause its and the Company its Subsidiaries’ Representatives respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal (including without limitation by amending, or may reasonably be expected granting any waiver under, Article NINTH of the Company Charter or Section 203 of the DGCL) or any inquiry with respect thereto or engage in discussions or negotiations with any Person with respect thereto (except to lead tonotify such Person of the existence of the provisions of this Section 7.8), or disclose any Company Takeover Proposal, nonpublic information or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed made, or to the Company’s knowledge is considering making, any Acquisition Proposal, or approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent, agreement in principle, merger agreement, option agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal, or propose publicly or agree to do any of the foregoing relating to an Acquisition Proposal. Nothing contained in this Agreement shall prevent the Board of Directors of the Company that it is contemplating from (i) complying with Rule 14e-2 under the Exchange Act with regard to an Acquisition Proposal or (ii) making a Company Takeover Proposalany disclosure if, in the case of this clause (ii), in the good faith judgment of the Company’s Board of Directors, after consultation with outside counsel, the failure to make such disclosure would be reasonably likely to be inconsistent with the directors’ exercise of their fiduciary duties to the Company’s stockholders under applicable law; provided, however, thatthat any such disclosure that relates to an Acquisition Proposal shall be deemed to be a Change in the Company Recommendation unless the Company’s Board of Directors reaffirms the Company Recommendation in such disclosure. Notwithstanding anything to the contrary in this Agreement but subject to the first sentence of Section 7.8(b), prior to (but not after) the consummation date of the Merger, in addition to Section 5.02(b)Company Stockholder Approval, the Company may, directly or indirectly through its advisors, agents or other intermediaries, (A) furnish information and access, but only in response to an unsolicited a request for information or access, to any Person making a bona fide fide, written Acquisition Proposal to the Board of Directors of the Company Takeover Proposal after the date hereof which did was not result from a obtained in breach of Section 5.2 or this Section 5.02(a7.8 and (B) participate in discussions and which negotiate with such Person or its representatives concerning any such unsolicited Acquisition Proposal, if and only if, in any such case set forth in clause (A) or (B) of this sentence, (1) the Board of Directors of the Company Board determines, concludes in good faith, after consultation with its (x) receipt of the advice of a financial advisor of nationally recognized reputation and outside legal counsel and financial advisorscounsel, is, that such Acquisition Proposal constitutes or may could reasonably be expected to lead to, result in a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions taking into account any revisions to the terms of the Merger or negotiations this Agreement proposed by Parent after being notified pursuant to Section 5.2(b), that failure to do so would be reasonably likely to be inconsistent with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose fiduciary duties to the Company’s stockholdersstockholders under applicable law and (2) (x) the Company receives from the Person making such an Acquisition Proposal, a position prior to engaging in any of the activities described in clause (A) or (B) of this sentence, an executed confidentiality agreement the material terms of which, as they relate to confidentiality, are (without regard to the terms of such Acquisition Proposal) in all material respects (i) no less favorable to the Company and (ii) no less restrictive to the Person making such Acquisition Proposal than those contained in the Confidentiality Agreement and (y) any information provided to such Person has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with respect the time it is provided to such Person. The Board of Directors of the Company shall not take any tender offer or exchange offer by a third party or amend or withdraw such position of the actions referred to in accordance with Rule 14d-9 the foregoing clauses (A) and Rule 14e-2 promulgated under (B) unless the Exchange Act (provided Company shall have first delivered to Parent written notice advising Parent that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with intends to take such tender offer or exchange unless the Company has complied with Section 5.02(b))action.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Anadarko Petroleum Corp), Agreement and Plan of Merger (Occidental Petroleum Corp /De/)
No Solicitation. (a) From Stockholder agrees that, during the period from the date of this Agreement to through the Effective TimeVoting Covenant Expiration Date, unless this Agreement is terminated earlier pursuant to Article VIII, the Company Stockholder shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, and shall not authorize or permit any of Stockholder’s Representatives directly or indirectly to: (ia) solicit, initiate, negotiateknowingly encourage, knowingly encourage induce or knowingly facilitate (including by way of furnishing non-public information) the making, submission or announcement of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Acquisition Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead toto the making, submission or announcement of an Acquisition Proposal; (b) furnish any information regarding the Company Takeover Proposal, or afford access to properties, books or records any affiliate of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, connection with or in response to an unsolicited bona fide Company Takeover Acquisition Proposal which did not result from a breach or an inquiry or indication of this Section 5.02(ainterest that could lead to an Acquisition Proposal; (c) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate engage in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position Person with respect to any tender offer Acquisition Proposal; or exchange offer by a third party (d) approve, endorse or amend recommend any Acquisition Proposal. The Stockholder shall promptly (and in no event later than 48 hours after receipt of any Acquisition Proposal, any inquiry or withdraw such position indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise the Purchaser orally and in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information relating to the Company Board shall not recommend that the Company’s stockholders tender their shares or any affiliate of capital stock in the Company in connection (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the period from the date of this Agreement through the Voting Covenant Expiration Date. The Stockholder shall keep the Purchaser fully informed with respect to the status of any such tender offer Acquisition Proposal, inquiry, indication of interest or exchange unless the Company has complied with Section 5.02(b))request and any modification or proposed modification thereto.
Appears in 2 contracts
Samples: Voting Agreement (Interactivecorp), Voting Agreement (Fairmarket Inc)
No Solicitation. (a) From and after the date hereof until the earlier of the Effective Time and the termination of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII7, the Company shall not, nor and shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary cause its Subsidiaries and their respective affiliates not to, and shall use its best efforts to cause the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal information or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toassistance), or take any other action to facilitate facilitate, any inquiries inquiry in connection with or the making of any proposal from any Person that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal (as defined in Section 5.08(f)), (ii) enter into, explore, maintain, participate in or continue any Company Takeover discussion or negotiation with any Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) regarding an Acquisition Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or furnish to any Person that has disclosed (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) any non-public information or otherwise assist or participate in, facilitate or encourage, any effort or attempt by any other Person (other than Acquisition Corp., Parent or any of the Acquisition Corp. Representatives, as applicable) to the make or effect an Acquisition Proposal, (iii) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal, or (iv) authorize or permit any Company that it is contemplating making a Company Takeover ProposalRepresentative to take any such action; provided, however, that, prior to until the consummation date of the Merger, in addition to Section 5.02(b)approval of this Agreement by the shareholders of the Company at the Shareholders Meeting, the Company mayBoard, based upon the recommendation of the Special Committee, shall not be prohibited by this Section 5.08 from furnishing information to, or engaging in response to discussions or negotiations with, any Person that makes an unsolicited bona fide Company Takeover written Acquisition Proposal (which did not result from a breach of this Section 5.02(a5.08) and which if (A) the Company Board, based upon the recommendation of the Special Committee, determines in good faith after consultation with independent outside legal counsel, that such action is necessary for the Company Board determines, in good faith, after consultation to comply with its outside legal counsel and financial advisorsfiduciary duties to the Company’s shareholders under applicable Law, is, (B) the Acquisition Proposal constitutes or may would reasonably be expected to lead to a Superior Proposal (as defined in Section 5.08(g)) and (C) prior to furnishing such information to, a Superior Company Proposalor engaging in discussions or negotiations regarding an Acquisition Proposal or the Transactions with, and subject to compliance with Section 5.02(c)such Person, (x) furnish information with respect to the Company to the person making receives from such Company Takeover Proposal and its Representatives pursuant to a customary Person an executed confidentiality agreement (which agreement shall have be provided to Parent for information purposes) with terms and conditions no less favorable to the Company than those contained in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (National Home Health Care Corp), Agreement and Plan of Merger (National Home Health Care Corp)
No Solicitation. (a) From the date of this Agreement to until the earlier of the Effective Time, unless Time or termination of this Agreement is terminated earlier pursuant to Article VIIISection 8, the Company shall notnot directly or indirectly, nor and shall it not authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, of the Company or any Company Subsidiary to, and Representative of any of the Company shall cause its and the Company Subsidiaries’ Representatives not to, Acquired Companies directly or indirectlyindirectly to, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) induce the making, submission or announcement of any Company Takeover Acquisition Proposal or take any action that would, individually or in the aggregate, reasonably be expected to lead to an Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Acquired Companies to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Company Takeover Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (iiiv) participate in enter into any discussions letter of intent or negotiations regarding, similar document or furnish any Contract contemplating or otherwise relating to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover ProposalAcquisition Transaction; provided, however, thatthat nothing herein shall prohibit the Company's Board of Directors from complying with Rules 14d-9 or 14e-2 under the Exchange Act; and provided, further, that prior to the consummation of the MergerRequired Company Stockholder Approval, in addition to this Section 5.02(b), 4.3(a) shall not prohibit the Company mayfrom furnishing nonpublic information regarding the Acquired Companies to, or entering into discussions with, any Person in response to an unsolicited bona fide Acquisition Proposal that is submitted to the Company Takeover Proposal which did by such Person (and not result from a breach withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Companies shall have violated in any material respect any of the restrictions set forth in this Section 5.02(a4.3, (2) and which the Board of Directors of the Company Board determines, concludes in good faith, after consultation with its outside legal counsel and faith (based upon a written opinion of an independent financial advisors, isadvisor of nationally recognized reputation) that such Acquisition Proposal constitutes, or may would reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c)Offer, (x3) furnish information with respect to the Board of Directors of the Company concludes in good faith after having taken into account the advice of its outside legal counsel, that such action is required in order for the Board of Directors of the Company to the person making such Company Takeover Proposal and comply with its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose fiduciary obligations to the Company’s stockholders's stockholders under applicable law, a position with respect (4) at least 24 hours prior to furnishing any tender offer such nonpublic information to, or exchange offer by a third party or amend or withdraw entering into discussions with, such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that Person, the Company Board shall not recommend that gives Parent written notice of the identity of such Person and of the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).'s intention to furnish
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Clarent Corp/Ca), Agreement and Plan of Merger and Reorganization (Act Networks Inc)
No Solicitation. (a) From the date Each of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, Parent and the Company shall and their respective Subsidiaries will not, and will use their reasonable best efforts to cause its their respective officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and the Company Subsidiaries’ Representatives other representatives not to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesAcquisition Proposal (including without limitation, in the case of the Company, by amending, or may reasonably be expected to lead togranting any waiver under, the Company Rights Agreement) or any Company Takeover inquiry with respect thereto or engage in substantive discussions or negotiations with any Person with respect thereto, or in connection with any Acquisition Proposal or potential Acquisition Proposal, disclose any nonpublic information relating to it or its Subsidiaries or afford access to the properties, books or records of the Company it or the Company its Subsidiaries to, any Person that made a Company Takeover Proposal has made, or to such party's knowledge, is considering making, any Person that has disclosed to the Company that it is contemplating making a Company Takeover Acquisition Proposal; provided, however, that, prior to in the consummation of the Merger, in addition to Section 5.02(b), event that (x) Parent or the Company may, in response to an unsolicited bona fide Company Takeover shall receive a Superior Proposal which that was not solicited by it and did not otherwise result from a breach of this Section 5.02(a7.10, (y) and which prior to receipt of the Parent Stockholder Approval (in the case of Parent) or the Company Stockholder Approval (in the case of the Company), the Board determinesof Directors of either Parent or the Company, as applicable, determines in its good faith judgment, after receiving the advice of outside counsel that, in good faithlight of this Superior Proposal, after consultation with its outside legal counsel and financial advisorsif Parent or the Company, isas applicable, fails to participate in such discussions or negotiations with, or may reasonably be expected to lead provide such information to, a the party making the Superior Company Proposal, there is a reasonable possibility that such Board of Directors would be in violation of its fiduciary duties under applicable law, and subject (z) after giving the other party two business days' notice of its intention to compliance with Section 5.02(c)do so, the party receiving such Superior Proposal may (xi) furnish information with respect to the Company it and its subsidiaries to the person Person making such Company Takeover Superior Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have containing terms and conditions generally no less favorable restrictive than those the terms contained in the Confidentiality AgreementAgreement (but not containing any exclusivity provision and permitting the Person to submit to the Board of Directors of the Company or Parent, as applicable, Acquisition Proposals with respect to the Company or Parent, as applicable, provided that any such Acquisition Proposal is subject to the approval of the Board of Directors of the Company or Parent, as applicable, (which approval may be granted solely in accordance with the terms of Sections 5.1(m) or 6.1(m) hereof)), provided that a copy of all such written information is simultaneously provided to the other party hereto and (yii) participate in discussions or and negotiations with regarding such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Superior Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Honeywell Inc), Agreement and Plan of Merger (Alliedsignal Inc)
No Solicitation. From and after the date hereof until the Expiration Date, each Stockholder shall not directly or indirectly: (a) From solicit, initiate or knowingly encourage, induce or facilitate the date communication, making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry regarding the Company or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (b) furnish any non-public information regarding the Company to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (c) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry regarding the Company, (d) approve, endorse or recommend any Acquisition Proposal (subject to Section 6.3 of the Merger Agreement) (e) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction regarding the Company (subject to Section 5.4 of the Merger Agreement), (f) take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry regarding the Company, (g) initiate a Stockholders’ vote or action by consent of the Company’s Stockholders with respect to an Acquisition Proposal regarding the Company, (h) except by reason of this Agreement Agreement, become a member of a “group” (as such term is defined in Section 13(d) of the Exchange Act) with respect to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, any voting securities of the Company that takes any action in support of an Acquisition Proposal regarding the Company or (i) propose or agree to do any of the foregoing. In the event that such Stockholder is a corporation, partnership, trust or other Entity, it shall not, nor shall it authorize or not permit any Company Subsidiary of its Subsidiaries or Affiliates to, nor shall it authorize any officer, director or permit any Representative ofrepresentative of such Stockholder, the Company or any Company Subsidiary of its Subsidiaries or Affiliates to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of undertake any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of actions contemplated by this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))7.
Appears in 2 contracts
Samples: Support Agreement (Vascular Biogenics Ltd.), Support Agreement (Vascular Biogenics Ltd.)
No Solicitation. (a) From Each Stockholder agrees that, during the period from the date of this Agreement to through the Effective TimeExpiration Date, unless this Agreement is terminated earlier pursuant to Article VIII, the Company such Stockholder shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, and such Stockholder shall instruct such Stockholder’s Representatives to not, directly or indirectly: (ia) solicit, initiate, negotiate, knowingly facilitate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission initiation of any Company Takeover Proposalinquiry, proposal or offer from any Person (iiother than Parent or Parent’s Representatives) enter into any agreement with respect relating to any Company Takeover Proposal or a possible Acquisition Transaction; (iiib) participate in any discussions or negotiations regardingor enter into any agreement with, or furnish to provide any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person (other than Parent or Parent’s Representatives) relating to or in connection with a possible Acquisition Transaction; or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent or Parent’s Representatives acting on behalf of Parent) relating to a possible Acquisition Transaction. Each Stockholder shall immediately cease and discontinue, and each Stockholder shall ensure that made a Company Takeover Proposal or to such Stockholder’s Representatives immediately cease and discontinue, any existing discussions with any Person that has related to any inquiry, proposal or offer relating to a possible Acquisition Transaction. Nothing contained in this Section 5 or Section 4.4 of the Merger Agreement shall prohibit such Stockholder or its Representatives from having discussions with any potential joint venture partner or otherwise considering any strategic acquisition so long as (x) the potential joint venture or acquisition transaction does not contemplate the sale or issuance of any securities of any Acquired Company (unless otherwise disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, Parent prior to the consummation date hereof) and would be intended primarily to address the needs of the Merger, in addition Acquired Companies to Section 5.02(b), find alternative sources of production of wafers for customers of the Company may, in response Acquired Companies during periods where the Acquired Companies lack the manufacturing capacity to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, fulfill their customers’ orders or may reasonably be expected to lead to, a Superior Company Proposalforecasted orders for wafers, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions the Company does not enter into any letter of intent or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position other binding agreement with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under of the Exchange Act (provided that foregoing without the Company Board shall prior written consent of Parent, not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))to be unreasonably withheld.
Appears in 2 contracts
Samples: Stockholder Support Agreement (Conexant Systems Inc), Stockholder Support Agreement (Acquicor Technology Inc)
No Solicitation. (a) From Acquirer agrees that, from and after the date of this Agreement to until the earlier of the Termination Date and the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIneither it nor any of its Subsidiaries nor any of the officers or directors of it or its Subsidiaries or its or their Representatives shall, directly or indirectly, initiate, solicit or otherwise facilitate any inquiries or the Company shall not, making of an Acquirer Acquisition Proposal (as defined below). Acquirer further agrees that neither it nor shall it authorize any of its Subsidiaries nor any of its or permit any Company Subsidiary to, nor shall it authorize its Subsidiaries' officers or permit any Representative of, the Company or any Company Subsidiary todirectors shall, and the Company that it shall direct and use its best reasonable efforts to cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage have any discussions with or knowingly facilitate (including by way of furnishing non-public information) the submission of provide any Company Takeover Proposal, (ii) enter into any agreement with respect confidential information or data to any Company Takeover Person relating to an Acquirer Acquisition Proposal or (iii) participate engage in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover concerning an Acquirer Acquisition Proposal, or afford access otherwise facilitate any effort or attempt to properties, books make or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover implement an Acquirer Acquisition Proposal; provided, however, that, prior that nothing contained in this Agreement shall prevent Acquirer or its Board of Directors from (i) making any disclosure to the consummation of the Mergerits stockholders if, in addition the good faith judgment of its Board of Directors, failure so to Section 5.02(b), the Company may, in response disclose would be inconsistent with its obligations under applicable law; (ii) negotiating with or furnishing information to an unsolicited any Person who has made a bona fide Company Takeover written Acquirer Acquisition Proposal which did not result from a breach of this Section 5.02(a6.2; or (iii) recommending such Acquirer Acquisition Proposal to its stockholders, if and only to the extent that, in the case of actions referred to in clause (ii) or clause (iii), such Acquirer Acquisition Proposal is a Superior Proposal (as defined below) and which the Company Board determinesis given at least two business days' notice of the existence of such Superior Proposal. Acquirer agrees that it will, in good faithon the date hereof, after consultation with its outside legal counsel immediately cease and financial advisorscause to be terminated any existing activities, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position Person conducted heretofore with respect to any tender offer or exchange offer by a third party or amend or withdraw such position Acquirer Acquisition Proposal. Nothing contained in accordance this Agreement shall prevent the Board of Directors of Acquirer from complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).Exchange
Appears in 2 contracts
Samples: Agreement and Plan (Diamond Multimedia Systems Inc), Agreement and Plan (Diamond Multimedia Systems Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary of its Subsidiaries to, and the Company it shall cause its and the Company its Subsidiaries’ respective Representatives not to, directly or indirectly, : (i) solicit, initiate, negotiate, knowingly encourage initiate or solicit or knowingly facilitate or encourage (including by way it being understood that providing information in the ordinary course of furnishing non-public informationbusiness consistent with past practice to categories of Persons to whom the Company routinely provides such information in the ordinary course of business consistent with past practice will not, in and of itself, constitute encouragement hereunder) any inquiry or the submission making of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company proposal that constitutes a Takeover Proposal or (iiiii) continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any information or data or access to its properties with respect to, or otherwise cooperate with or knowingly take any other action to facilitate any inquiries proposal that constitutes any Takeover Proposal. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Takeover Proposal (and shall not waive or otherwise modify any existing standstill provision or confidentiality agreement that benefits the making Company) and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of any proposal that constitutesconfidential information previously furnished to such Person in connection therewith. Notwithstanding the foregoing, or may reasonably be expected prior to lead to, any Company Takeover Proposal, or afford access to properties, books or records receipt of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b)Stockholder Approval, the Company mayand its Representatives, in response to an unsolicited a bona fide Company written Takeover Proposal which that was made after the date of this Agreement and did not result from a material breach of this Section 5.02(aAgreement and that (1) and which constitutes a Superior Proposal or (2) the Board of Directors of the Company Board determines, determines in good faith, faith (after consultation with its outside legal counsel and a financial advisors, is, or may advisor of nationally recognized reputation) could reasonably be expected to lead to, result in a Superior Company Proposal, and subject shall be permitted to: (A) provide access to compliance with Section 5.02(c), (x) furnish non-public information with respect to the Company to the person Person making such Company Takeover Proposal and its Representatives pursuant to a customary and in accordance with an executed confidentiality agreement (which shall have terms and conditions no not less favorable restrictive of the other party than those in the Confidentiality Agreement), ; provided that all such information provided to such Person has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time it is provided to such Person; and (yB) participate in discussions or negotiations with respect to such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to with the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw Person making such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Terra Industries Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative officer, director or employee of, or any investment banker, attorney, accountant or other advisor, representative or agent (collectively, “Representatives”) of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage initiate or knowingly facilitate (including by way of furnishing non-public information) encourage, or take any other action to knowingly facilitate, any inquiry or the submission making of any Company proposal that constitutes or is reasonably likely to lead to a Takeover Proposal, Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toway with, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, that at any time prior to obtaining the consummation of the Merger, in addition to Section 5.02(b)Company Stockholder Approval, the Company Board may, in response to an unsolicited a bona fide Company written Takeover Proposal that the Company Board determines in good faith (after consultation with a financial advisor of nationally recognized reputation) constitutes or is reasonably likely to lead to a Superior Proposal, and which Takeover Proposal did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal5.02, and subject to compliance with Section Sections 5.02(c) and 5.02(d) (including providing prior written notice to Parent of its decision to take such action), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal (and its Representatives Representatives) pursuant to a customary confidentiality agreement (which shall have terms and conditions no not less favorable restrictive as a whole of such person than those in the Confidentiality Agreement (provided that such confidentiality agreement and any related agreement shall not contain any provision having the effect of prohibiting the Company from satisfying its obligations under this Agreement), provided, further, that all such information is provided or made available on substantially concurrent basis to Parent and Sub) and (y) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives Representatives) regarding any such Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company Takeover Proposal and (zor any Company Subsidiary or any Representative of the Company or any Company Subsidiary shall be deemed to be a breach of this Section 5.02(a) takeby the Company. The Company shall, and disclose shall use its reasonable best efforts to cause each Company Subsidiary and each Representative of the Company’s stockholdersCompany or any Company Subsidiary to, a position immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any tender offer or exchange offer by Takeover Proposal and request from each person that has executed a third party or amend or withdraw such position in accordance confidentiality agreement with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares prompt return or destruction of capital stock in the Company in connection with all confidential information previously furnished to such tender offer person or exchange unless the Company has complied with Section 5.02(b))its Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (United Defense Industries Inc), Agreement and Plan of Merger (United Defense Industries Inc)
No Solicitation. (a) From and after May 9, 1999 until the date earlier of the Effective Time or the termination of this Agreement to the Effective Timein accordance with its terms, unless this Agreement is terminated earlier pursuant to Article VIII, the Company Xoom shall not, nor shall it authorize or permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or permit any Representative officer, director or employee of, the Company or any Company Subsidiary toinvestment banker, and the Company shall cause attorney or other advisor or representative of, Xoom or any of its and the Company Subsidiaries’ Representatives not Subsidiaries to, directly or indirectly, (i) take any action to solicit, initiate, negotiate, knowingly encourage or knowingly facilitate any Material Transaction Proposal (including by way of furnishing non-public informationas defined below) or the submission of any Company Takeover Proposal, a Material Transaction Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Material Transaction Proposal; provided, however, PROVIDED that, prior to obtaining the consummation affirmative vote of the Mergerholders of a majority of the outstanding shares of common stock of Xoom to adopt the Xenon 2 Merger Agreement (the "XOOM STOCKHOLDER APPROVAL" and, in addition to Section 5.02(b)together with the Xenon 2 Stockholder Approval, the Company may"STOCKHOLDER APPROVALS"), in response to an unsolicited bona fide Company BONA FIDE Takeover Proposal which did not result from a breach Proposal, Xoom may, to the extent that the Board of this Section 5.02(a) and which the Company Board determines, Directors of Xoom determines in good faith, after consultation with its faith based on the advice of outside legal counsel and financial advisors, is, or may reasonably be expected that such action is required to lead to, a Superior Company Proposal, and subject to compliance comply with Section 5.02(c)their fiduciary duties under applicable law, (xA) furnish information with respect to the Company Xoom and its Subsidiaries to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms representatives and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations discuss such information with such person and its Representatives representatives and (B) participate in negotiations regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any Company Takeover request for information or any Material Transaction Proposal, the material terms and conditions of such request or Material Transaction Proposal and (z) takethe identity of the person making any such request or Material Transaction Proposal, and disclose will keep NBC fully informed on a current basis of the status and details of any such request or Material Transaction Proposal, PROVIDED that, prior to the Company’s stockholdersproviding any information to any Person or participating in negotiations with any Person, a position Xoom shall have received an executed confidentiality agreement. Xoom will immediately cease and cause to be terminated any existing activities, discussions and negotiations conducted heretofore with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Material Transaction Proposal.
Appears in 2 contracts
Samples: Agreement and Plan (General Electric Co), Agreement and Plan (Xoom Inc)
No Solicitation. (a) From and after the date of this Agreement to until the Effective Time, unless Closing Date or termination of this Agreement is terminated earlier pursuant to Article VIIISection 10, the Company shall and the Selling Lenders will not, nor shall it will they authorize or permit any Company Subsidiary toof their respective officers, nor shall it authorize directors, affiliates or permit any Representative of, the Company employees or any Company Subsidiary toinvestment banker, and the Company shall cause its and the Company Subsidiaries’ Representatives not attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) induce the making, submission or announcement of any Company Takeover ProposalAcquisition Proposal (as hereinafter defined), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal, or afford access (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to propertiesany Acquisition Proposal, books except in each case to the extent any such action is undertaken to comply with any applicable legal requirement. The Company and the Selling Lenders will immediately cease any and all existing activities, discussions or records negotiations with any parties conducted heretofore with respect to any Acquisition Proposal to the extent prohibited by the preceding sentence. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or the Company Subsidiaries toSelling Lenders or any investment banker, any Person that made a Company Takeover Proposal attorney or to any Person that has disclosed to other advisor or representative of the Company that it is contemplating making or the Selling Lenders shall be deemed to be a breach of this Section 5.4 by the Company Takeover Proposal; provided, however, that, prior to or the consummation of Selling Lenders. Notwithstanding the Merger, in addition to Section 5.02(b)foregoing, the Company may, in response to an unsolicited bona fide Company Takeover unsolicited, written Acquisition Proposal which did not result from a breach of this Section 5.02(a(as defined below) and which the Board of Directors of the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may would reasonably be expected to lead to, to a Superior Company Proposal, Proposal (as hereinafter defined) and subject pursuant to compliance an executed confidentiality agreement with Section 5.02(c)customary terms and conditions at least as restrictive as the confidentiality provisions of the agreement entered into among the parties hereto, (xA) furnish information with respect to the Company to the person making who made such unsolicited proposal and afford such person access to the properties, books, records, officers, and employees of the Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement Subsidiaries, and (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (yB) participate in discussions with, or negotiations with accept a Superior Proposal from, such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Superior Proposal.
Appears in 2 contracts
Samples: Loan Purchase Agreement and Transfer (Davel Communications Inc), Loan Purchase Agreement and Transfer and Assignment of Shares (Mobilepro Corp)
No Solicitation. (a) From and after the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIhereof, the Company agrees (i) that it and its subsidiaries shall not, nor shall it or its subsidiaries authorize or knowingly permit any Company Subsidiary todirector, nor shall it authorize officer or permit any Representative of, employee of the Company or any Company Subsidiary toof its subsidiaries or any investment banker, and attorney, accountant or other advisor or representative of the Company shall cause or any of its and subsidiaries (collectively, the Company Subsidiaries’ Representatives not "Representatives") to, directly or indirectly, (i) solicit, initiateinitiate or encourage, negotiateor take any other action knowingly to facilitate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (as defined below) or (iii) participate engage in any discussions or negotiations regarding, or furnish provide any nonpublic information or data to any person any information with respect to, make or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead toimplement, any Company Takeover Proposal, in each case other than a Takeover Proposal made by Parent; (ii) that it shall immediately cease and cause to be terminated any existing discussions or afford access negotiations with any third persons conducted heretofore with a view to properties, books or records formulating a Takeover Proposal; and (iii) that it shall immediately notify Parent of the Company or the Company Subsidiaries to, receipt of any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company and that it is contemplating making a Company shall keep Parent informed of the status of such Takeover Proposal; provided, however, that, at any time prior to obtaining the consummation of the Merger, in addition to Section 5.02(b)Stockholder Approval, the Company may, in response to an unsolicited a bona fide Company Takeover Proposal that the Board of Directors of the Company determines in good faith could reasonably be expected to lead to a Superior Proposal (as defined below) and which Takeover Proposal did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c)4.02, (x) furnish information with respect to the Company and its subsidiaries to the person making such Company Takeover Proposal (and its Representatives representatives) pursuant to a customary confidentiality agreement (which except that such confidentiality agreement shall have terms and conditions no less favorable than those in the Confidentiality Agreementnot prohibit such person from making an unsolicited Takeover Proposal), provided that all such information is provided on a prior or substantially concurrent basis to Parent, and (y) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives representatives) regarding any Company such Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Water Works Co Inc), Agreement and Plan of Merger (Rwe Aktiengesellschaft /Adr/)
No Solicitation. (a) From Company agrees that it will not, and will cause its Subsidiaries and its and its Subsidiaries’ officers, directors, agents, advisors and affiliates not to, initiate, solicit, encourage or knowingly facilitate inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal, or waive any provision of or amend the terms of the Company Rights Agreement, in respect of an Acquisition Proposal; provided that, in the event Company receives an unsolicited Acquisition Proposal and the Board of Directors of Company concludes in good faith that there is a reasonable likelihood that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, Company may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the Board of Directors of Company concludes in good faith (and based on the advice of counsel) that failure to take such actions would more likely than not result in a violation of its fiduciary duties under applicable law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement as entered into on September 26, 2008, and it shall simultaneously provide Parent with any such nonpublic information to the extent it has not previously provided such information to Parent. Company will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall not, nor shall it authorize or permit with any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement persons other than Parent with respect to any Acquisition Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Company Takeover Proposal or will promptly (iiiwithin two business days) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making advise Parent following receipt of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records Acquisition Proposal and the substance thereof (including the identity of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal Acquisition Proposal), and its Representatives pursuant to a customary confidentiality agreement will keep Parent apprised of any related developments, discussions and negotiations (which shall have including the terms and conditions no less favorable than those in of the Confidentiality Agreement), (yAcquisition Proposal) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, on a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))current basis.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wachovia Corp New), Agreement and Plan of Merger (Wachovia Corp New)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor and shall it not authorize or permit any Company Subsidiary of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (ia) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined), or (b) agree to or endorse any Takeover Proposal. Notwithstanding the immediately preceding sentence, if the Company shall not have breached the covenant provided by clause (a) of the immediately preceding sentence and a Takeover Proposal, or afford access a written expression of interest that can reasonably be expected to propertieslead to a Takeover Proposal, books shall occur, then, upon the good faith determination of the Board of Directors of the Company, acting upon the advice of its legal and financial advisors, that the Takeover Proposal is a better offer than the transactions contemplated by this Agreement and consistent with the fiduciary obligations under applicable law of the Company's Board of Directors, the Company and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish in connection therewith information (including non-public information, but only pursuant to a confidentiality agreement in customary form, including customary standstill provisions) and take such other actions as are consistent with the fiduciary obligations of the Company's Board of Directors, and such actions shall not be considered a breach of this Section 5.12 or records any other provision of this Agreement; provided, however, that the Company shall not, and shall not permit any of its officers, directors, employees or other representatives to, agree to or endorse any Takeover Proposal unless the Company shall have terminated this Agreement pursuant to Section 7.1(e) and paid to Parent all amounts payable to Parent pursuant to Section 5.6(b). The Company shall promptly advise Parent orally and in writing of any inquiries or Takeover Proposals and keep Parent informed of the status and material information with respect to such inquiries or Takeover Proposals. As used in this Agreement, "Takeover Proposal" shall mean any tender or exchange offer, proposal for a merger, consolidation or other business combination involving the Company or the Company Subsidiaries toCommon Stock and made by a Person other than Parent or any proposal or offer to acquire in any manner a substantial equity interest in, any Person that made or a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation substantial portion of the Merger, in addition to Section 5.02(b)assets of, the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of other than the transactions contemplated by this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Arrow Electronics Inc), Agreement and Plan of Merger (Arrow Electronics Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any officer or director of the Company Subsidiary or any officer or director of its Subsidiaries to, nor shall it authorize or permit permit, any Representative officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any Company Subsidiary of its Subsidiaries to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of of, any Company Takeover ProposalProposal (as defined below), (ii) except as provided in Section 5.4(b), enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect toto the Company, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, that prior to the consummation acceptance for payment of shares of Common Stock pursuant to the Offer, to the extent required by the fiduciary obligations of the MergerCompany Board, as determined in addition to Section 5.02(b)good faith by a majority of the members thereof based on the written advice of outside counsel, the Company may, in response to an unsolicited written bona fide Company Takeover Proposal which did not result that contains no financing condition from a breach of this Section 5.02(a) and which person that the Company Board determines, in good faith, after consultation with its outside legal counsel and reasonably believes has the financial advisors, is, or may reasonably be expected ability to lead to, make a Superior Company Proposal, and Proposal (as defined in Section 5.4(b)) subject to compliance with Section 5.02(c5.4(c), (x) furnish non-public information with respect to the Company to the such person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and person. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any executive officer or director of the Company or any of its Representatives regarding Subsidiaries or any investment banker, attorney or other advisor or representative of the Company Takeover Proposal and (zor any of its Subsidiaries shall be deemed to be a breach of this Section 5.4(a) take, and disclose to by the Company’s stockholders. For purposes of this Agreement, "Takeover Proposal" means any written ----------------- proposal that contains no financing condition for a position with respect to any tender offer merger or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that other business combination involving the Company Board shall not recommend that or any of its Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of the equity securities of the Company or more than 20% of the Company’s stockholders tender their shares of capital stock in 's consolidated total assets, other than the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hain Food Group Inc), Agreement and Plan of Merger (Hain Food Group Inc)
No Solicitation. (a) From The Company shall, and shall direct and cause its officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Company Takeover Proposal (as defined below) and immediately request that all confidential information furnished by or on behalf of the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company be returned. The Company shall not, nor shall it authorize or permit any Company Subsidiary of its subsidiaries to, nor shall it authorize or permit any Representative ofof its officers, the Company directors or employees or any Company Subsidiary toinvestment banker, and the Company shall cause financial advisor, attorney, accountant or other representative retained by it or any of its and the Company Subsidiaries’ Representatives not tosubsidiaries, directly or indirectly, to (i) solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to), or take any other action knowingly designed or reasonably likely to facilitate facilitate, any inquiries or the making of any proposal that which constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to (ii) participate in any Person that has disclosed to the Company that it is contemplating making a discussion or negotiations regarding any Company Takeover Proposal; provided, however, thatthat if, at any time prior to the consummation Company shareholder meeting with respect to the transactions contemplated hereby, the Board of Directors of the MergerCompany determines in good faith, based on the advice of its outside legal counsel, that the failure to do so would result in addition a breach of its fiduciary duties to Section 5.02(b)the Company's shareholders under applicable Law, the Company may, in response to an unsolicited bona fide a Company Takeover Superior Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal(as defined below), and subject to compliance with Section 5.02(c4.8(c), (x) furnish information with respect to the Company to the any person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms as determined by the Company after consultation with outside legal counsel) and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with regarding such person and its Representatives regarding any Company Takeover Proposal for purposes of determining in good faith if such Company Takeover Proposal is a Company Superior Proposal. "Company Takeover Proposal" means any inquiry, proposal or offer from any person relating to (1) any direct or indirect acquisition or purchase of assets representing 20% or more of the consolidated assets of the Company and the Company Subsidiaries, (z2) takeany issuance, and disclose sale, or other disposition of (including by way of merger, consolidation, business combination, share exchange, joint venture, or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) representing 20% or more of the voting power of the Company, (3) any tender offer, exchange offer or other transaction in which, if consummated, any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Securities Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Securities Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership, of, 20% or more of the outstanding voting capital stock of the Company, or, (4) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any Company Subsidiary, other than the transactions contemplated by this Agreement. Notwithstanding any provision to the Company’s stockholderscontrary contained in this Section 4.8, the provision by the Company of copies of its SEC filings by its investor relations department to third parties in a manner consistent with its historical practices, shall not be deemed a violation of this Section 4.8. For purposes of this Agreement, a position with respect to "Company Superior Proposal" means any tender offer or exchange offer bona fide proposal made by a third party to acquire, directly or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under indirectly, for consideration consisting of cash and/or securities, more than a majority of the Exchange Act (provided that combined voting power of the Company Board shall not recommend that Shares then outstanding or all or substantially all the assets of the Company’s stockholders tender their shares , on terms which the Board of capital stock in Directors of the Company determines in connection with its good faith judgment based on the advice of the Company's financial advisers and outside legal counsel to be more favorable to the Company's shareholders, from a financial point of view, than the Merger (taking into account all factors relating to such tender offer or exchange unless proposed transaction deemed relevant by the Company has complied with Section 5.02(b)Board of Directors of the Company, including, without limitation, the financing thereof and all other conditions thereto).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sunbeam Corp/Fl/), Agreement and Plan of Merger (Landrys Seafood Restaurants Inc)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary of its Subsidiaries to, nor shall it authorize or permit any of its and its Subsidiaries' directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (collectively, "Representatives") to, directly or indirectly (and it shall instruct, and cause each of its Subsidiaries to instruct, each such Representative of, of the Company or any Company Subsidiary to, and the Company shall cause of its and the Company Subsidiaries’ Representatives Subsidiaries not to, directly or indirectly), (i) solicit, initiate, negotiate, knowingly encourage initiate or knowingly facilitate (including by way of furnishing non-public information) encourage, or take any other action knowingly to facilitate, any Takeover Proposal or any inquiries or the submission making of any Company proposal that could reasonably be expected to lead to a Takeover Proposal, Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take otherwise cooperate in any way with respect to, any Takeover Proposal. The Company shall, and shall cause its Subsidiaries and direct its Representatives to, (A) immediately cease and cause to be terminated all existing discussions and negotiations with any person conducted heretofore with respect to any Takeover Proposal and (B) as promptly as practicable after the date hereof, request the prompt return or destruction of all confidential information previously furnished to such person(s) within the last twelve (12) months for the purpose of evaluating a possible Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, if, at any time prior to the Offer Closing, the Company, in response to a bona fide written Takeover Proposal that the Board of Directors of the Company determines in good faith constitutes or is reasonably likely to lead to a Superior Proposal, and which Takeover Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a material breach of this Section 5.02, may, and may permit and authorize its Subsidiaries and its and its Subsidiaries' Representatives to, in each case subject to compliance with Section 5.02(c) and the other action provisions of this Agreement, (A) furnish information with respect to facilitate any inquiries or the Company and its Subsidiaries to the person making such Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement which contains terms that are not materially less restrictive than those contained in each of any proposal the Confidentiality Agreement and the Standstill Agreement dated May 15, 2008 between Parent and the Company (as it may be amended from time to time, the "Standstill Agreement") and which need not restrict such person from making an unsolicited Takeover Proposal, provided that constitutesall such information had been provided, or may is concurrently provided, to Parent, and (B) participate in discussions or negotiations with the person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal. Without limiting the generality of the foregoing, it is understood that any material violation of the restrictions set forth in this Section 5.02(a) by any Subsidiary of the Company or any of the Company's or its Subsidiaries' Representatives shall be deemed to be a material breach by the Company of this Section 5.02(a). 36 For purposes of this Agreement, the term "Takeover Proposal" means any inquiry, proposal or offer from any person (other than Parent or Sub or any of their affiliates) relating to, or that could reasonably be expected to lead to, any Company Takeover Proposaldirect or indirect acquisition, in one transaction or afford access to propertiesa series of transactions, books including by way of any merger, consolidation, tender offer, exchange offer, stock acquisition, asset acquisition, binding share exchange, business combination, recapitalization, liquidation, dissolution, joint venture, license agreement or records similar transaction, of (i) assets or businesses that constitute or represent fifteen percent (15%) or more of the total revenue or assets of the Company and its Subsidiaries, taken as a whole, or (ii) fifteen percent (15%) or more of the outstanding shares of Company Common Stock or of any class of capital stock of, or other equity or voting interests in, one or more of the Subsidiaries of the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Mergerwhich, in addition the aggregate, directly or indirectly, hold the assets or businesses referred to Section 5.02(b)in clause (i) above. For purposes of this Agreement, the Company may, in response to an unsolicited term "Superior Proposal" means any bona fide Company Takeover Proposal written offer, which was not solicited after the date hereof and did not result from a material breach of this Section 5.02(a), made by any person (other than Parent or Sub or any of their affiliates) that, if consummated, would result in such person (or in the case of a direct merger between such person and the Company, the stockholders of such person) acquiring, directly or indirectly, more than fifty percent (50%) of the voting power of the Company Common Stock or all or substantially all the assets of the Company and its Subsidiaries, taken as a whole, and which offer, the Board of Directors of the Company Board determines, determines in good faith, after consultation with its outside legal counsel and a financial advisorsadvisor of nationally recognized reputation, is, (i) provides a higher value to the stockholders of the Company than the consideration payable in the Offer and the Merger (taking into account all of the terms and conditions of such proposal and this Agreement (including any changes to the terms of the Offer or may reasonably be expected this Agreement proposed by Parent in response to lead to, a such Superior Company Proposal, and subject to compliance with Section 5.02(cProposal or otherwise)), (xii) furnish information with respect is not subject to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions any financing condition or negotiations with such person and its Representatives regarding any Company Takeover Proposal financing contingency and (ziii) takeis reasonably capable of being completed in a timely fashion, taking into account all financial, legal, regulatory and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw other aspects of such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kosan Biosciences Inc), Agreement and Plan of Merger (Bristol Myers Squibb Co)
No Solicitation. (a) From Each of the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company shall Sellers agrees that it will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectlyindirectly through any officer, subsidiary, Affiliate, director, employee, stockholder, representative, agent or other Person, (i) solicitseek, initiate, negotiate, knowingly solicit or encourage any Person to make an inquiry or knowingly facilitate proposal with respect to the purchase or other acquisition (including by way of furnishing non-public informationa merger, consolidation, stock purchase, asset purchase or share exchange) of a significant portion of the submission of Fastener Business Assets or any Company Takeover substantially similar transaction, in each case other than the transactions contemplated by this Agreement (a "Fastener Business Acquisition Proposal"), (ii) enter into engage in negotiations or discussions concerning a Fastener Business Acquisition Proposal with any agreement with respect to any Company Takeover Proposal Person or group, (iii) participate in disclose any discussions non-public information relating to the Sellers or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford give access to the properties, employees, books or records of the Company Sellers or the Company Subsidiaries to, any of its subsidiaries to any Person that made a Company Takeover or group in connection with any Fastener Business Acquisition Proposal or (iv) approve or recommend or agree to approve or recommend any Fastener Business Acquisition Proposal; provided that nothing herein shall prevent the Board of Directors of the Parent from (a) furnishing information to any Person that has disclosed to the Company that it is contemplating making made a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, Fastener Business Acquisition Proposal not solicited in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach violation of this Section 5.02(a5.11 or (b) subject to the other provisions of this Section 5.11, entering into or participating in discussions or negotiations concerning a Fastener Business Acquisition Proposal not solicited in violation of this Section 5.11 so long as, in each case, (x) the Board of Directors of the Parent shall have concluded in good faith, after receiving and which considering the Company advice of its outside legal counsel, that failing to participate in such discussions or negotiations or furnishing such information would cause the Board determinesof Directors of the Parent to be in breach of its fiduciary responsibilities to its stockholders under applicable Law, and (y) prior to participating in such discussions or negotiations or furnishing any such information, such Seller and the party making such offer agrees to a confidentiality agreement that is no more favorable to the party receiving information than the Confidentiality Agreement and the Buyer is given concurrent or advance written notice thereof. The Board of Directors of the Parent may (A) fail to make, withdraw, or modify in a manner adverse to the Parent its recommendation to its stockholders referred to in Section 5.12 hereof, (B) take and disclose to its stockholders a position contemplated by Rule 14e-2 under the Exchange Act or otherwise complying with its disclosure obligations and/or (C) take any non-appealable, final action ordered to be taken by the Parent by any court of competent jurisdiction, but in each case only if the Board of Directors of the Parent shall have concluded in good faith, after consultation with its outside legal counsel and financial advisorscounsel, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making that such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those action is required in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and exercise of its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated fiduciary duties under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))applicable Law.
Appears in 2 contracts
Samples: Acquisition Agreement (Fairchild Corp), Acquisition Agreement (Fairchild Corp)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative officer, director or employee of, or any investment banker, attorney or other advisor or representative (collectively, “Representatives”) of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) directly or indirectly solicit, initiate, negotiate, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement or understanding with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person Person any information with respect to, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes, or may could reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, that prior to the consummation of the Merger, in addition to Section 5.02(b), the Company mayOffer Closing Date, in response to an unsolicited a bona fide written Company Takeover Proposal which that was not solicited by the Company, any Company Subsidiary or any of their respective Representatives, that did not otherwise result from a breach of this Section 5.02(a5.04(a) and which that the Company Board determines, in good faith, after consultation with its the Company’s outside legal counsel and independent financial advisorsadvisor, is, constitutes or may is reasonably be expected likely to lead to, result in a Superior Company Proposal (a “Qualifying Company Takeover Proposal, and subject to compliance with Section 5.02(c”), the Company may (xA) furnish information with respect to the Company to the person Person making such Qualifying Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have an Acceptable Confidentiality Agreement so long as the Company also provides Parent, in accordance with the terms and conditions no less favorable than those in of the Confidentiality Agreement), any non-public information with respect to the Company provided to such other Person which was not previously provided to Parent, and (yB) participate in discussions or negotiations with such person Person and its Representatives regarding any such Qualifying Company Takeover Proposal, including soliciting the making of a revised Qualifying Company Takeover Proposal and (z) take, and disclose to waiving standstill provisions in any confidentiality agreement with such Person. Any violation of the Company’s stockholders, a position with respect to restrictions set forth in the preceding sentence by any tender offer Representative or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that affiliate of the Company Board or any Company Subsidiary shall not recommend that the Company’s stockholders tender their shares be deemed to be a breach of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with this Section 5.02(b5.04(a)).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Noven Pharmaceuticals Inc), Agreement and Plan of Merger (Hisamitsu U.S., Inc.)
No Solicitation. (a) From the date hereof until the earlier of the termination of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIits terms or the Closing Date, the Company Company, SCHS, PM, CLSC and the Shareholders agree that neither they nor any of their Subsidiaries nor any of their officers and directors or those of their Subsidiaries shall, and that the Company, SCHS, PM, CLSC and the Shareholders shall notuse its reasonable best efforts to cause their and their Subsidiaries’ Employees, nor shall agents and representatives (including any investment banker, attorney or accountant retained by it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary of its Subsidiaries) (collectively, “Representatives”) not to (and shall not authorize any of them to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to), directly or indirectly, : (i) solicit, initiate, negotiateencourage, knowingly encourage facilitate or knowingly facilitate (including by way of furnishing non-public information) induce any inquiry with respect to, or the making, submission of or announcement of, any Company Takeover Acquisition Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal, (iii) engage in discussions with any Person with respect to any Acquisition Proposal, except as to the existence of the provisions of this Section 6.19, (iv) approve, endorse or recommend any Acquisition Proposal, or afford access to properties, books (v) enter into any letter of intent or records of the Company similar document or the Company Subsidiaries to, any Person that made a Company Takeover Proposal Contract contemplating or otherwise relating to any Person that has disclosed to Acquisition Proposal. The Sino-Canada Entities and the Company that it is contemplating making a Company Takeover Proposal; providedShareholders will immediately cease any and all existing activities, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position third parties conducted heretofore with respect to any Acquisition Proposal with respect to itself. “Acquisition Proposal” shall mean any offer or proposal, relating to any transaction or series of related transactions involving: (A) any purchase from the Company or acquisition by any Person or “group” (as defined under Section 13(d) of the Exchange Act and the rules and regulations thereunder) of more than a ten percent (10%) interest in the total outstanding voting securities of the Sino-Canada Entities or any tender offer or exchange offer by that if consummated would result in any Person or group beneficially owning ten percent (10%) or more of the total outstanding voting securities of the Sino-Canada Entities or any merger, consolidation, business combination or similar transaction involving the Sino-Canada Entities, (B) any sale, lease (other than in the ordinary course of business), exchange, transfer, license (other than in the ordinary course of business), acquisition or disposition of more than ten percent (10%) of the assets of the Sino-Canada Entities (taken as a third party whole), or amend (C) any liquidation or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that dissolution of the Company’s stockholders tender their shares of capital stock in ; provided, however, that neither discussions with Purchaser nor the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))transactions contemplated by this Agreement shall be deemed an Acquisition Proposal.
Appears in 1 contract
Samples: Plan of Reorganization and Share Exchange Agreement (Hartcourt Companies Inc)
No Solicitation. (a) From During the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIPre-Closing Period, the Company shall not, nor shall it authorize not directly or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary toindirectly do, and shall ensure that no Representative of any of the Company shall cause its and the Company Subsidiaries’ Representatives not to, Acquired Corporations directly or indirectlyindirectly does, any of the following: (i) solicit, initiate, negotiateencourage, knowingly encourage induce or knowingly facilitate (including by way of furnishing non-public information) the communication, making, submission or announcement of any Company Takeover Proposal, Acquisition Proposal or Acquisition Inquiry; (ii) enter into furnish any agreement information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Acquisition Proposal or Acquisition Inquiry; (iiiiv) participate in approve, endorse or recommend any discussions Acquisition Proposal; or negotiations regarding, (v) execute or furnish to enter into any person any information letter of intent with respect to, to an Acquisition Proposal or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover ProposalAcquisition Agreement; provided, however, that, prior notwithstanding anything contained in this Section 4.3(a) (but subject to the consummation other provisions of this Agreement), from the Merger, in addition to Section 5.02(b)date hereof until the adoption and approval of this Agreement by the Required Stockholder Vote, the Company maymay furnish nonpublic information regarding the Acquired Corporations to, or enter into discussions with, any Person in response to a Superior Offer (or an unsolicited bona fide Acquisition Proposal or Acquisition Inquiry that the Board of Directors or the Special Committee believes in good faith is reasonably likely to result in a Superior Offer) that is submitted to the Company Takeover Proposal which did by such Person (and not result withdrawn) if: (1) neither the Company nor any Representative of any of the Acquired Corporations shall have breached (or taken any action inconsistent with) any of the provisions set forth in this Section 4.3; (2) the Board of Directors (or the Special Committee thereof) concludes in good faith, after having taken into account the advice of its outside legal 44. counsel, that such action is required in order for the Board of Directors to comply with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements; (3) at least one business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person; (4) the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions, no hire provisions and “standstill” provisions) at least as favorable to the Company as those contained in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”); and (5) prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that, in the event any Representative of any of the Acquired Corporations (whether or not such Representative is purporting to act on behalf of any of the Acquired Corporations) takes any action that, if taken by the Company, would constitute a breach of this Section 5.02(a) and which 4.3 by the Company, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.3 by the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality for purposes of this Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).
Appears in 1 contract
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it permit or authorize any of its Subsidiaries or permit any Company Subsidiary toofficer, nor shall it authorize director, employee, accountant, counsel, financial advisor, agent or permit any Representative of, other representative of the Company or any of its Subsidiaries (collectively, the “Company Subsidiary Representatives”) to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) directly or indirectly solicit, initiate, negotiate, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal directly or (iii) indirectly participate in any discussions or negotiations regardingwith, or furnish any non-public information or data relating to any person any information with respect the Company or its Subsidiaries to, any Third Party in connection with any Takeover Proposal or knowingly take any other action to facilitate any other inquiries or the making of any proposal that constitutes, or may that would reasonably be expected to lead to, any Company Takeover Proposal, or afford access (iii) except as permitted by Section 4.3(b) below, enter into any agreement with respect to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or approve or resolve to approve any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, thatthat nothing contained in this Section 4.3 or any other provision hereof shall prohibit the Company, the Company Board or the Special Committee from (A) taking and disclosing to the Company’s stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to, or otherwise complying with, Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (B) making any disclosure to the Company’s stockholders if the Company Board or the Special Committee determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would reasonably be expected to result in a violation of the Company Board’s or Special Committee’s exercise of its fiduciary duties to the holders of shares of Class A Common Stock or if such disclosure is otherwise required under applicable Law. Upon execution of this Agreement, the Company shall, and it shall use its reasonable best efforts to cause the Company Representatives to, immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding two sentences by any Representative of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 4.3(a) by the Company. Notwithstanding the foregoing, prior to the consummation of the Merger, in addition to Section 5.02(b)Approval Date, the Company may, in response to an unsolicited bona fide Company Takeover Proposal received by the Company which did not result from a breach of this Section 5.02(a) 4.3 and which the Company Board determines, Special Committee determines in good faith, after consultation with its outside legal counsel and financial advisors, is, advisors is or may reasonably be expected lead to lead to, a Superior Company Proposal, furnish information concerning its business, properties or assets to any Person or group making such Takeover Proposal, and subject may negotiate and participate in discussions and negotiations with such Person or group concerning a Takeover Proposal if such Person or group has submitted a Superior Proposal that is pending at the time the Company determines to take such action if, and only to the extent that and so long as, (A) the Company and its Subsidiaries are otherwise in compliance with Section 5.02(c)4.3 and, prior to furnishing such information to such Person, the Company receives from such Person an executed confidentiality agreement, and (xB) furnish information in accordance with the following three sentences, the Company keeps NWC informed, on a current basis, of the status and details of any such discussions or negotiations as provided above. The Company will promptly (and in any event within two Business Days) notify NWC in writing, of the existence of any proposal, discussion, negotiation or inquiry received by the Company with respect to any Takeover Proposal, and the Company’s response thereto (including whether any information has been provided by the Company pursuant to the foregoing sentence), and the Company will promptly communicate to NWC the material terms and conditions of any proposal, discussion, negotiation or inquiry that it may receive and the identity of the Person or group making such proposal or inquiring or engaging in such discussions or negotiations. The Company will keep NWC reasonably informed of the status and details of any such Takeover Proposal and any amendments or revisions thereto. The Company shall promptly provide to NWC any non-public information concerning the Company or any Company Subsidiary that is provided to the person making such Company Takeover Proposal and or its Representatives pursuant representatives which was not previously provided to a customary confidentiality agreement (which shall NWC. As used in this Agreement, the following terms have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).meanings set forth below:
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nationwide Financial Services Inc/)
No Solicitation. (a) From Immediately following the date execution of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIIIAgreement, the Company will terminate any and all existing activities, discussions and negotiations with third parties (other than the Parent) with respect to any possible Acquisition Transaction (as defined below). The Company and its subsidiaries and their respective officers, directors and employees shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall and its subsidiaries will use all reasonable efforts to cause its and the Company Subsidiaries’ Representatives their representatives, agents or affiliates not to, directly or indirectly, (i) knowingly encourage, solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in initiate any discussions or negotiations regardingwith, any corporation, partnership, person or furnish to any person any information with respect to, other entity or take any group (other action to facilitate any inquiries than the Parent or the making Sub or any affiliate or associate of the Parent or the Sub or any proposal that constitutesof their respective directors, officers, employees, representatives or may reasonably be expected to lead toagents) concerning any merger, consolidation, business combination, liquidation, reorganization, sale of substantial assets, sale of shares of capital stock or similar transactions involving the Company or any Company Takeover Proposal, or afford access to properties, books or records material Subsidiary of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal(each an "Acquisition Transaction"); provided, however, thatthat if Company's Board of Directors determines after consultation with counsel, prior that it is required to do so in the exercise of the fiduciary duties of the Company's directors to the consummation of the Merger, in addition to Section 5.02(b)Company or its stockholders, the Company mayBoard of Directors may respond to, or engage in response to discussions with respect to, a written offer for an unsolicited bona fide Company Takeover Proposal which did not result from a breach of Acquisition Transaction; and provided further that nothing contained in this Section 5.02(a) and which shall prohibit the Company or its Board determines, in good faith, after consultation with its outside legal counsel of Directors from taking and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose disclosing to the Company’s stockholders, 's stockholders a position with respect to any a tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule pursuant to Rules 14d-9 and Rule 14e-2 14e-2(a) promulgated under the Exchange Act or from making such other disclosure to the Company's stockholders which, as advised by outside counsel, is required under applicable law. The Company will promptly communicate to Parent the terms and conditions of any proposal for an Acquisition Transaction that it may receive and will keep Parent informed as to the status of any action, including any discussions, taken pursuant to such proposed or contemplated Acquisition Transaction. (provided that b) Immediately following the execution of this Agreement, the Parent will terminate any and all existing activities, discussions and negotiations with third parties (other than the Company and Apollo) with respect to any possible Acquisition Transaction. The Parent and its subsidiaries and their respective officers, directors and employees shall not, and the Parent and its subsidiaries will use all reasonable efforts to cause their representatives, agents or affiliates not to, directly or indirectly, knowingly encourage, solicit, or initiate any discussions or negotiations with, any corporation, partnership, person or other entity or group (other than the Company and Apollo or any affiliate or associate of the Company and Apollo or any of their respective directors, officers, employees, representatives or agents) concerning any Acquisition Transaction; provided, however, that if during the 45 days following the date of this Agreement the Parent's Board shall not recommend of Directors determines, after consultation with counsel, that the Company’s stockholders tender their shares of capital stock it is required to do so in the Company exercise of the fiduciary duties of the Parent's directors to the Parent or its stockholders, the Board of Directors may respond to, or engage in connection discussions with respect to, a written offer for an Acquisition Transaction during such 45 day period; and provided further that nothing contained in this Section 5.02(b) shall prohibit the Parent or its Board of Directors from taking and disclosing to the Parent's stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or exchange unless from making such other disclosure to the Parent's stockholders which, as advised by outside counsel, is required under applicable law. The Parent will promptly communicate to the Company has complied with Section 5.02(b)).the terms and conditions of any proposal for an Acquisition Transaction II-20
Appears in 1 contract
Samples: And Restated Agreement and Plan of Merger (New Grancare Inc)
No Solicitation. Company agrees that, during the term of this Agreement, it shall not, and shall not authorize and will use best efforts not to permit any of its Subsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to solicit, initiate, encourage or facilitate, or furnish or disclose nonpublic information in furtherance of, any inquiries with respect to or the making of any Acquisition Proposal, or negotiate, explore or otherwise engage in discussions with any person (aother than Buyer or its respective directors, officers, employees, agents and representatives) From with respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; PROVIDED that, at any time prior to the approval of this Agreement by the - 33 - Company Stockholders, Company may (i) furnish information to, and negotiate or otherwise engage in discussions with, any person that delivers a written Acquisition Proposal, or (ii) recommend to the Company Stockholders, an Acquisition Proposal that was not solicited or encouraged, except to the extent explicitly permitted by this Section 5(i), after the date of this Agreement to if and so long as the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Board of Directors of Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, believes in good faithfaith as determined by a majority vote, after consultation with its outside legal counsel and financial advisorscounsel, is, or may that failing to take such action would reasonably be expected to lead toconstitute a breach of its fiduciary duties under applicable laws and believes in good faith, after consulting with its financial advisors and Company's outside legal counsel, that such proposal is a Superior Acquisition Proposal; PROVIDED, FURTHER, that, prior to furnishing any information to such person, Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to shall enter into a customary confidentiality agreement (which shall have terms and conditions that is no less favorable restrictive, in any material respect, than those in the Confidentiality Agreement). Company will immediately cease all existing activities, (y) participate in discussions or and negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose persons conducted prior to the Company’s stockholders, a position date of this Agreement with respect to any tender offer Acquisition Proposal and request the return of all confidential information regarding Company provided to any such persons prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or exchange offer otherwise. In the event that, prior to the approval of this Agreement by the Company Stockholders, the Board of Directors of Company receives a third party Superior Acquisition Proposal that was not solicited or amend encouraged, except to the extent permitted by this Section 5(i), and the Board of Directors of Company believes in good faith based upon the advice of its outside legal counsel that failure to take such action would reasonably be expected to constitute a breach of the fiduciary duties of the Board of Directors of Company, the Board of Directors of Company may (subject to this Section 5(i) and Section 5(c)(ii)) withdraw, modify or withdraw such position change, in accordance a manner adverse to Buyer, the Company's recommendation of the Agreement and/or comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to such Superior Acquisition Proposal, PROVIDED that Company gives Buyer three days' prior written notice of its intention to do so (provided PROVIDED that the Company Board foregoing shall not recommend that the Company’s stockholders tender their shares in no way limit or otherwise affect any party's right to terminate this Agreement pursuant to Section 7 hereof). Simultaneously with any termination of capital stock in this Agreement by the Company pursuant to Section 7(a)(vi), Company shall pay Buyer the Break-up Fee contemplated by Section 7(b) hereof. From and after the execution of this Agreement, Company shall promptly (but in connection with any event within 48 hours) advise Buyer in writing of the receipt, directly or indirectly, of any inquiries or proposals or the participation by or on behalf of Company in any discussions or negotiations, relating to an Acquisition Proposal (including, in each case, the specific terms and status thereof and the identity of the other person or persons involved) and promptly furnish to Buyer a copy of any such tender offer written proposal in addition to any information provided to or exchange unless by any third party relating thereto. The Company will keep Buyer informed on a current basis of the status of such discussions and negotiations. In addition, Company has complied with shall promptly advise Buyer, in writing, if the Board of Directors of Company shall make any determination as to any Acquisition Proposal as contemplated by the proviso to the first sentence of this Section 5.02(b)5(i).
Appears in 1 contract
Samples: Merger Agreement (Tab Products Co)
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the Company The Employee shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage indirectly solicit ---------------- an employee or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records consultant of the Company to terminate his or her employment or contractual relationship with the Company Subsidiaries toand become employed or engaged by the Employee or any other person or entity in substantially the same or a similar business as that engaged in by the Company if such employment would involve the performance of services and duties substantially the same or similar to those the employee or consultant performed for the Company. EXHIBIT E PROMISSORY NOTE --------------- $ Dated as of -------------- --------------- FOR VALUE RECEIVED, any Person that made a Company Takeover Proposal or intending to any Person that has disclosed be legally bound, the undersigned ("Maker") hereby promises to pay to the Company that it is contemplating making a Company Takeover Proposalorder of SMT Health Services Inc., its successors and assigns (hereinafter referred to as "Payee") upon the schedule set forth below, the principal sum of Dollars ($ ), ---------- ------------- together with interest on the unpaid principal amount of this Promissory Note from time to time outstanding. The unpaid principal amount of this Promissory Note shall bear interest at the rate of [APPLICABLE LONG TERM FEDERAL RATE] per annum. Maker shall pay to Payee the entire principal amount and all accrued interest on [THE TENTH ANNIVERSARY OF THE DATE OF THE NOTE]. Payments shall be made to Payee at the principal office of the Payee or such other place as Payee may designate in writing to Maker, in lawful money of the United States of America in immediately available funds without set-off, counterclaim or other deduction of any nature. Maker may prepay this Promissory Note at any time in whole or in part without payment of penalty; provided, however, that, prior that any such prepayment of principal shall be accompanied by the payment of interest accrued to the consummation date of such prepayment and all costs, expenses or charges then owed to Payee pursuant to this Promissory Note. Upon the occurrence of any one of the Merger, in addition to Section 5.02(bfollowing events ("Events of Default"), the Company mayentire principal amount outstanding and all accrued interest thereunder shall at the option of Payee, without any prior notice, presentment or demand, become immediately due and payable in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).full:
Appears in 1 contract
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative ofdirector, officer or employee of the Company or any Company Subsidiary, or any investment banker, attorney, accountant or other advisor or representative (collectively, “Representatives”) of the Company or any Company Subsidiary to, and the Company shall cause its and the Company Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, negotiatecause, knowingly encourage or knowingly take any other action to facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, Proposal or the making of any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal or (ii) enter into any agreement with respect to any Company Takeover Proposal into, continue or (iii) otherwise participate in any discussions or negotiations regarding, or furnish to any person (other than Parent or its Representatives or the Company’s Representatives) any confidential information with respect to, to or take any other action intended to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, that at any time prior to obtaining the consummation of the Merger, in addition to Section 5.02(b)Stockholder Approval, the Company Board may, in response to an unsolicited bona fide Company written Takeover Proposal which that did not result from a breach of this Section 5.02(a) 5.2, and which if the Company Board determines, determines in good faith, after consultation with its financial advisors and outside legal counsel and financial advisorscounsel, is, that such Takeover Proposal constitutes or may would be reasonably be expected likely to lead to, to a Superior Company Proposal, Proposal and subject that failing to compliance take such action would be reasonably likely to be inconsistent with Section 5.02(c)its fiduciary duties to the Company’s stockholders under applicable Law, (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal (and its Representatives pursuant to a customary Representatives), provided that the Company receives or has received from such party an executed confidentiality agreement with terms (which shall have terms and conditions including with respect to standstill provisions) no less favorable to the Company than those contained in the Confidentiality Agreement); provided, that all such information has previously been provided to Merger Sub or is provided to Merger Sub prior to or substantially concurrently with the time it is provided to such person, (y) participate in discussions or negotiations with the person making such person Takeover Proposal (and its Representatives Representatives) regarding any Company such Takeover Proposal Proposal, and (z) take, and disclose to waive any standstill with the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw person making such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Takeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cherokee International Corp)
No Solicitation. (a) From and after the date execution and delivery of this Agreement until the earlier to occur of the Effective Time, unless Time or termination of this Agreement is terminated earlier pursuant to Article VIIIVIII hereof, the Company and its subsidiaries shall not, nor shall it ------------ will they authorize or permit any Company Subsidiary toof their respective officers, nor shall it authorize directors, controlled affiliates or permit any Representative of, the Company employees or any Company Subsidiary toinvestment banker, and the Company shall cause its and the Company Subsidiaries’ Representatives not attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate induce the making, submission or announcement of an Acquisition Proposal (including by way of furnishing non-public information) the submission of any Company Takeover Proposalas defined below), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect torelating 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 any person that has made, or take any other action intended to assist or facilitate any inquiries or the making of any proposal that constitutes, constitutes or may would reasonably be expected to lead to, an Acquisition Proposal, (iii) engage in discussions or negotiations with any Company Takeover person with respect to an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, or afford access (v) enter into any letter of intent or similar Contract contemplating or otherwise relating to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposalan Acquisition Transaction (as defined below); provided, however, thatthat notwithstanding the foregoing, prior to the consummation of the Merger, in addition to Section 5.02(b), Effective Time the Company Board may, in response directly or indirectly through advisors, agents or other intermediaries, subject to an unsolicited bona fide Company Takeover Proposal which did not result from a breach the Company's compliance with the terms of this Section 5.02(a6.1, (A) engage or participate in discussions or ----------- negotiations with any person that has made (and which not withdrawn) a bona fide Acquisition Proposal that the Company Board determinesreasonably concludes in good faith (after consultation with a financial advisor of nationally recognized reputation) constitutes a Superior Proposal, and/or (B) furnish to such person nonpublic information relating to the Company or any of its subsidiaries pursuant to a confidentiality agreement with terms that in the aggregate are no less favorable to the Company than those contained in the Confidentiality Agreement, provided that in each case (1) none of the Company, any of its subsidiaries or any representative of the Company or its subsidiaries shall have violated any of the terms of this Section 6.1 in connection with such ----------- Acquisition Proposal, (2) the Company Board reasonably concludes in good faith, after consultation with its outside legal counsel and financial advisorscounsel, is, or may reasonably be expected that in light of such Superior Proposal such action is required in order for the Company Board to lead to, a Superior Company Proposal, and subject comply with its fiduciary obligations to compliance with Section 5.02(c)the Company's stockholders under Delaware Law, (x3) furnish information with respect at least two (2) business days prior to the Company to the person making engaging or participating in any such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreement), (y) participate in discussions or negotiations with with, such person and its Representatives regarding any Company Takeover Proposal and (z) takeperson, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares gives Parent written notice of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).the
Appears in 1 contract
No Solicitation. (a) From the date of this Agreement to merger agreement until the Effective TimeTime or, unless this Agreement is terminated earlier pursuant to Article VIIIif earlier, the Company shall notvalid termination of the merger agreement in accordance with its terms, nor shall it Monogram has agreed to immediately cease and cause to be terminated and will not authorize or permit its or its subsidiaries’ directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives, whom we refer to collectively as “representatives,” to continue to engage in or conduct any Company Subsidiary toexisting discussions or negotiations with any person with respect to a Takeover Proposal (as defined below). Additionally, nor shall it authorize or permit any Representative ofMonogram has agreed to use commercially reasonable efforts to obtain, promptly after the public announcement of the entrance by LabCorp, the Company Purchaser and Monogram into the merger agreement, the return or any Company Subsidiary todestruction of all copies of confidential information previously provided to such persons. Monogram, its subsidiaries and the Company shall cause its and the Company Subsidiaries’ Representatives not torepresentatives, may not, directly or indirectly, (i) : • solicit, initiate, negotiate, knowingly facilitate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of , except as required by applicable law), any Company Takeover Proposalinquiries, (ii) enter into any agreement with respect to any Company Takeover Proposal proposals or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information offers with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutesconstitute, or may that would reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided• participate or engage in any discussions or negotiations with any third party regarding any Takeover Proposal; Table of Contents • enter into any letter of intent, howeveragreement in principle, thatmemorandum of understanding, merger, acquisition, purchase or joint venture agreement or other agreement related to any Takeover Proposal (other than for certain confidentiality agreements), each referred to as a “Company Acquisition Agreement”; or • release or permit the release of any person from, or waive or permit the waiver of any provision of or right under, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement to which Monogram or any of its subsidiaries is a party or has any rights. Notwithstanding the restrictions described above, after the date of the merger agreement and prior to the consummation Acceptance Time, if: • Monogram’s board of the Merger, in addition to Section 5.02(b), the Company may, in response to directors receives an unsolicited bona fide Company written Takeover Proposal which did under circumstances not result from involving a breach of this Section 5.02(aMonogram’s obligations under the merger agreement; and • Monogram’s board of directors (i) and which the Company Board determines, determines in good faith, faith after consultation consulting with its outside legal counsel and financial advisors, isadvisor that the Takeover Proposal constitutes, or may could reasonably be expected to lead to, a Superior Company ProposalProposal (as defined below), and subject (ii) determines in good faith, after consulting with outside legal counsel, that the failure to compliance take such action would be inconsistent with Section 5.02(c)the fiduciary duties of Monogram’s board to Monogram’s stockholders under applicable law; then Monogram and/or its subsidiaries and representatives may, (x) furnish information with respect at any time prior to the Company Acceptance Time and after providing LabCorp not less than two business days prior written notice of its intentions to take such actions: • furnish non-public information to the person making such Company the Takeover Proposal and its Representatives Proposal, pursuant to a customary confidentiality agreement that is no less restrictive than the confidentiality agreement between Monogram and LabCorp, provided that: • the confidentiality agreement includes no exclusive right to negotiate with Monogram, and • Monogram advises LabCorp of all non-public information delivered to the person making the Takeover Proposal and concurrently delivers or makes available to LabCorp or its legal counsel any non-public information not previously provided or made available to LabCorp or its legal counsel; and • participate in discussions and negotiations with the person regarding the Takeover Proposal (which shall have including seeking revised Takeover Proposals from the person as part of such discussions and negotiations). In addition, Monogram must promptly advise LabCorp, orally and in writing, and in no event later than 24 hours after receipt if any proposal, offer, inquiry or other contact is received by, any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, Monogram regarding any Takeover Proposal. Any notice to LabCorp must indicate the identity of the person making the proposal, offer, inquiry or other contact and the material terms and conditions no less favorable than those in and must include with the Confidentiality Agreement), (y) participate in notice copies of any written materials received. Monogram also must promptly keep LabCorp fully informed of all material developments affecting the status of any discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal proposals, offers, inquiries or requests and (z) take, and disclose to the Company’s stockholders, a position with respect to provide copies of any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))additional written materials received.
Appears in 1 contract
Samples: Laboratory Corp of America Holdings
No Solicitation. (a) From the date of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, the The Company shall and its subsidiaries and affiliates will not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause and its subsidiaries and the Company Subsidiaries’ Representatives not toaffiliates will use their reasonable best efforts to ensure that their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents do not, directly or indirectly, : (i) solicit, initiate, negotiate, knowingly encourage solicit or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect toencourage, or take any other action to facilitate any inquiries or the making of of, any offer or proposal that constitutes, which constitutes or may is reasonably be expected likely to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed to the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b), the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(aAlternative Transaction (as defined below) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company or any of its subsidiaries or an inquiry with respect thereto, or, (ii) in the event of an unsolicited Alternative Transaction for the Company or any of its subsidiaries, engage in negotiations or discussions with, or provide any information or data to any person relating to any Alternative Transaction, subject to the Board's good faith determination, after consulting with outside legal counsel to the Company, that the failure to engage in such negotiations or discussions or provide such information would likely result in a breach of the Board's fiduciary duties under applicable law if such Alternative Transaction would provide the Company Stockholders with a purchase price per Share that is higher (the amount of such excess in the purchase price per Share is hereinafter referred to as the "Spread") than the Merger Consideration to be received by the Company Stockholders. The Company shall notify Gaming and EAS orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions thereof and the identity of the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less favorable than those in the Confidentiality Agreementsuch), (y) participate in discussions or negotiations with such person and its Representatives regarding any within twenty four hours of the receipt thereof. The Company Takeover Proposal and (z) takeshall, and disclose shall cause its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, immediately cease and cause to the Company’s stockholdersbe terminated all existing discussions and negotiations, a position if any, with any parties conducted heretofore with respect to any tender offer Alternative Transaction relating to the Company or exchange offer any of its subsidiaries. Notwithstanding anything to the contrary, nothing contained in this Section 4.8 shall prohibit the Company or the Board from communicating to the Company Stockholders a position as required by a third party or amend or withdraw such position in accordance with Rule Rules 14d-9 and Rule 14e-2 14a-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock in the Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b))Act.
Appears in 1 contract
No Solicitation. (a) From and after the date hereof until the earlier of the Effective Time or the termination of this Agreement to the Effective TimeAgreement, unless this Agreement is terminated earlier pursuant to Article VIII, neither the Company shall notnor any of its subsidiaries nor any of their respective officers, nor shall it authorize directors, employees, agents or permit any Company Subsidiary torepresentatives (including, nor shall it authorize or permit any Representative ofwithout limitation, the Company or any Company Subsidiary toinvestment bankers, attorneys and the Company shall cause its and the Company Subsidiaries’ Representatives not toaccountants) shall, directly or indirectly, (i) soliciti)solicit, initiate, negotiate, knowingly initiate or encourage or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Proposal, (ii) enter ii)enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regardingwith, in any way continue any discussions or negotiations commenced before the date of this Agreement with, or furnish to any person disclose directly or indirectly any information with respect not customarily disclosed concerning its business and properties to, or take afford any other action access to facilitate any inquiries or the making of any proposal that constitutesits properties, or may reasonably be expected to lead books and records to, any corporation, partnership or other person or group in connection with any possible proposal (an "Acquisition Proposal") regarding a sale of all or any part of the Company's capital stock or a merger, consolidation or statutory share exchange involving the Company Takeover Proposal, or afford access to properties, books or records any subsidiary of the Company or sale or spin-off of all or a substantial portion of the assets of the Company Subsidiaries to, or any Person that made a subsidiary of the Company Takeover Proposal or to any Person that has disclosed which is material to the Company that it is contemplating making and its subsidiaries taken as a Company Takeover Proposal; providedwhole, however, that, prior to the consummation or a liquidation or a recapitalization of the MergerCompany, in addition or any similar transaction; provided that (x)in response to Section 5.02(b)an Acquisition Proposal made without such solicitation, initiation or encouragement, the Company may, in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach may (if the Board of this Section 5.02(a) and which the Company Board determines, Directors shall have concluded in good faith, after consultation based on the advice of outside counsel that any action is required for the Board of Directors to comply with its outside legal counsel and financial advisors, is, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), fiduciary duties under applicable law) (x) furnish i)furnish information with respect to the Company to the any person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have terms and conditions no less more favorable to such person than those in the Confidentiality Agreement), Agreement is to Parent and (y) participate ii)participate in discussions or negotiations with regarding such person and its Representatives regarding any Company Takeover Acquisition Proposal and (z) take, y)the Board of Directors shall be free to take and disclose to the Company’s stockholders, a any position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 offer pursuant to Rules l4d-9 and Rule 14e-2 promulgated l4e-2 under the Exchange Act (provided that the Company Board shall not recommend that and make such disclosures to the Company’s stockholders tender their shares 's shareholders, which, upon the advice of capital stock outside counsel, is required by applicable law. The Company will notify Parent immediately, orally and in writing, if any discussions or negotiations are sought to be initiated, any inquiry or proposal is made, or any such information is requested, with respect to an Acquisition Proposal or potential Acquisition Proposal or if any Acquisition Proposal is received or indicated to be forthcoming, and will include in such notification the identity of the other party or parties and the material terms and conditions of any such request, inquiry or Acquisition Proposal. The Company in connection with will keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such tender offer request, inquiry or exchange unless the Company has complied with Section 5.02(b))Acquisition Proposal.
Appears in 1 contract
No Solicitation. (a) From and after the date of this Agreement to until the Effective Time, unless Time or termination of this Agreement is terminated earlier pursuant to Article VIIIVII, the Company shall and its subsidiaries will not, nor shall it will they authorize or permit any Company Subsidiary toof their respective officers, nor shall it authorize directors, affiliates or permit any Representative of, the Company employees or any Company Subsidiary toinvestment banker, and the Company shall cause its and the Company Subsidiaries’ Representatives not attorney or other advisor or representative retained by any of them to, directly or indirectly, indirectly (i) solicit, initiate, negotiate, knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) induce the making, submission or announcement of any Company Takeover ProposalAcquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Company Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, constitutes or may reasonably be expected to lead to, any Company Takeover Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, (iv) subject to Section 5.2(c), approve, endorse or afford access to properties, books or records of the Company or the Company Subsidiaries to, recommend any Person that made a Company Takeover Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Person that has disclosed Acquisition Transaction (as defined below). Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Notwithstanding the Company that it is contemplating making a Company Takeover Proposal; provided, however, that, prior to the consummation of the Merger, in addition to Section 5.02(b)foregoing two sentences, the Company may, may participate in response to an unsolicited bona fide Company Takeover Proposal which did not result from a breach of this Section 5.02(a) and which the Company Board determines, in good faith, after consultation with its outside legal counsel and financial advisors, isdiscussions or negotiations with, or may reasonably be expected to lead to, a Superior Company Proposal, and subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary confidentiality agreement (which shall have including a standstill agreement therein) with terms and conditions no less favorable to the Company than those in effect between the Confidentiality Agreement)Company and Parent to any Person if and only if (x) such Person has submitted an unsolicited bona fide written Acquisition Proposal to the Company's Board of Directors, (y) participate in discussions or negotiations with such person and its neither the Company nor any of the Company Representatives regarding any Company Takeover Proposal shall have violated the foregoing two sentences and (z) take, and disclose to the Company’s stockholders, a position with respect to any tender offer or exchange offer Board of Directors of the Company (i) determines by a third party majority vote in its good faith judgment, after consultation with outside counsel, that such Acquisition proposal is a Superior Offer and taking such action is necessary to satisfy the fiduciary duties of such Board under applicable law and (ii) provides prior written notice to Parent of its decision to so participate or amend or withdraw such position in accordance with Rule 14d-9 and Rule 14e-2 promulgated under furnish. Without limiting the Exchange Act (provided foregoing, it is understood that any violation of the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock restrictions set forth in the preceding two sentences by any officer or director of Company in connection with such tender offer or exchange unless the Company has complied with Section 5.02(b)).any of its subsidiaries
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Appnet Inc /De/)
No Solicitation. (a) From the date Each of this Agreement to the Effective Time, unless this Agreement is terminated earlier pursuant to Article VIII, Arrow and the Company shall notagrees that, during the Pre-Closing Period, neither it nor any of its Subsidiaries shall, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representative of, the Company or any Company Subsidiary to, and the Company shall cause of its and the Company Subsidiaries’ Subsidiaries authorize any of Representatives not to, directly or indirectly, : (i) solicit, initiate, negotiateencourage, knowingly encourage induce or knowingly facilitate (including by way of furnishing non-public information) the submission of any Company Takeover Acquisition Proposal, ; (ii) enter into furnish any agreement information regarding such Party to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Company Takeover Acquisition Proposal or Acquisition Inquiry; (iiiiv) participate in approve, endorse or recommend any discussions Acquisition Proposal (subject to Sections 5.2 and 5.3); (v) execute or negotiations regarding, enter into any letter of intent or furnish any Contract contemplating or otherwise relating to any person Acquisition Transaction; or (vi) grant any information with respect towaiver or release under any confidentiality, standstill or take any similar agreement (other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal, or afford access to properties, books or records of the Company or the Company Subsidiaries to, any Person that made a Company Takeover Proposal or to any Person that has disclosed than to the Company that it is contemplating making a Company Takeover Proposalother Party); provided, however, that, notwithstanding anything contained in this Section 4.3(a), (x) prior to the consummation adoption and approval of this Agreement by the Merger, in addition to Section 5.02(b)Required Company Stockholder Vote, the Company and its Subsidiaries and Representatives may and (y) prior to the adoption and approval of this Agreement by the Required Arrow Stockholder Vote, Arrow and its Representatives may, furnish information regarding such Party and its Subsidiaries to, and enter into discussions or negotiations with, any Person in response to an unsolicited a bona fide Company Takeover written Acquisition Proposal which by such Person that did not result from a breach of this Section 5.02(a) and 4.3, which the Company Board determines, such Party’s board of directors determines in good faith, after consultation with its such Party’s financial advisor, and outside legal counsel and financial advisorscounsel, isconstitutes, or may is reasonably be expected likely to lead toresult in, a Superior Company ProposalOffer (and is not withdrawn) if: (A) at least one Business Day prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, such Party gives the other Party written notice of the identity of such Person and subject of such Party’s intention to compliance with Section 5.02(c)furnish nonpublic information to, or enter into discussions with, such Person; (xB) furnish information with respect to the Company to the person making such Company Takeover Proposal and its Representatives pursuant to a customary Party receives from such Person an executed confidentiality agreement containing provisions (which shall have terms including nondisclosure provisions, use restrictions, non-solicitation and conditions no less hire provisions) at least as favorable than to such Party as those contained in the Confidentiality Agreement), (y) participate in discussions or negotiations with such person and its Representatives regarding any Company Takeover Proposal Agreement and (zC) takesubstantially contemporaneously with furnishing any such nonpublic information to such Person, and disclose such Party furnishes such nonpublic information to the Company’s stockholdersother Party (to the extent such information has not been previously furnished by such Party to the other Party). Without limiting the generality of the foregoing, a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such position in accordance with Rule 14d-9 each Party acknowledges and Rule 14e-2 promulgated under the Exchange Act (provided that the Company Board shall not recommend that the Company’s stockholders tender their shares of capital stock agrees that, in the Company in connection with event any Representative of such tender offer Party (whether or exchange unless not such Representative is purporting to act on behalf of such Party) takes any action that, if taken by such Party, would constitute a breach of this Section 4.3 by such Party, the Company has complied with taking of such action by such Representative shall be deemed to constitute a breach of this Section 5.02(b))4.3 by such Party for purposes of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Oncogenex Pharmaceuticals, Inc.)
