No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Iac/Interactivecorp), Agreement and Plan of Merger (Care.com Inc), Agreement and Plan of Merger (Iac/Interactivecorp)
No Solicitation. (a) Except as expressly permitted by otherwise provided for in this Section 5.3Agreement (including as set forth in Sections 5.03(b), from (c), (d) and after the date hereof(e)), the Company agrees that it and its Subsidiaries shall, and that it shall cause direct its Subsidiaries and Representatives totheir respective directors, officers or other employees, controlled Affiliates, or any investment banker, attorney, accountant or other agent or representative retained by any of them (xcollectively and acting in such capacity, “Representatives”) promptly to immediately cease and cause to be terminated any discussions or negotiations with any Third Party Persons (other than Parent or its Affiliates or their respective Representatives) that may be are ongoing with respect to an Acquisition Proposal and, until the earlier of the Merger Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article VIII, it and its Subsidiaries shall not and it shall direct its and their respective Representatives not to, directly or indirectly (other than with respect to Parent or its Affiliates or their respective Representatives): (i) solicit, knowingly initiate, knowingly facilitate or knowingly encourage any Acquisition Proposal; (ii) participate in any 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 (other than to request clarification of an Acquisition Proposal that has already been made for purposes of assessing whether such Acquisition Proposal is or any proposal, inquiry or offer that would could reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party a Superior Proposal or to promptly return or destroy all confidential information concerning notify the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party applicable Person of the existence of the provisions contained in of this Section 5.35.03), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (Civ) make available approve or recommend any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (Dv) enter into any letter of intent or agreement in principle similar document or any Contract concerning agreement or commitment providing for any Acquisition Proposal or Proposal; (vi) take any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) action in connection with an Acquisition Proposal to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar antitakeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL), or any inquiryrestrictive provision of any applicable antitakeover provision in the certificate of incorporation or bylaws of the Company, discussion, offer inapplicable to any person other than Parent and its Affiliates or request that would reasonably be expected to lead to any transactions constituting or contemplated by an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement ; or (vvii) resolve or agree to do any of the foregoing 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 return or destroy, subject to the terms of such confidentiality agreement, all confidential information furnished to such person in connection with its consideration of an Acquisition Proposal. Neither the Company nor any action set forth in of its Subsidiaries shall terminate, amend, modify or waive any rights under, or release any Person (other than Parent) from, any “standstill” or other similar agreement between the foregoing clauses Company or any of its Subsidiaries, on the one hand, and such Person, on the other (i), (ii), (iv) or (v) of this sentence (other than to the extent related to the foregoing clauses (i) such “standstill” or (ii) of this sentencesimilar agreement or provision expires, falls away or terminates in accordance with its terms), a “Change of Board Recommendation”)unless the Special Committee determines in good faith (after consultation with the Special Committee’s outside legal counsel) that the failure to take such action would be reasonably likely to be inconsistent with the Special Committee’s fiduciary duties under Delaware Law.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Brookfield Property Partners L.P.), Agreement and Plan of Merger (Brookfield Asset Management Inc.), Agreement and Plan of Merger (GGP Inc.)
No Solicitation. (a) Except as expressly may be permitted by this Section 5.3, from and after the date hereof4.2, the Company shall, and the Company shall cause its Subsidiaries and Representatives to, (x) promptly immediately cease and cause to be terminated any discussions solicitation, encouragement, discussion or negotiations negotiation with any Third Party that may be ongoing Persons conducted heretofore by the Company, its Subsidiaries or any Representatives with respect to any Acquisition actual or potential Competing Proposal and (y) with respect to third parties with whom discussions or negotiations have been terminated on, prior to or subsequent to the date hereof, the Company shall use its reasonable best efforts to obtain the return or the destruction of, in accordance with the terms of the applicable confidentiality agreement, confidential information previously furnished by the Company, its Subsidiaries or its Representatives. Except as otherwise specifically permitted by this Section 4.2 the Company agrees that it will not, and will not authorize or permit any of its Subsidiaries or any proposalof its or its Subsidiaries’ directors, inquiry officers or employees to, and it will use its reasonable best efforts to cause its agents and representatives (including investment bankers, attorneys and accountants) not to, directly or indirectly, (i) initiate, solicit or knowingly encourage or facilitate (including by providing information) any inquiries, proposals or offers with respect to, or the making of, any proposal or offer that would constitutes, or could reasonably be expected to lead to an Acquisition a Competing Proposal, and (yii) request enter into, participate or engage in or continue any such Third Party discussions or negotiations with any Person with respect to promptly return a Competing Proposal or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination any indication of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission interest that constitutes or would could reasonably be expected to lead to an Acquisition a Competing Proposal; , (Biii) engage in furnish or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available provide any non-public information or data regarding the Company or its Subsidiaries to any Person, or provide access to any Person (other than Parentto the properties, and Merger Sub and their respective Representatives acting in their capacities as such) assets or employees of the Company or its Subsidiaries in connection with or in response to an Acquisition a Competing Proposal or any proposal, inquiry or offer indication of interest that would could reasonably be expected to lead to an Acquisition a Competing Proposal; , (Div) approve or recommend to the Company’s stockholders any Competing Proposal or (v) approve or recommend to the Company’s stockholders, or execute or enter into any letter of intent or agreement in principle principal, or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected other agreement relating to lead to an Acquisition a Competing Proposal (other than an Acceptable Confidentiality Agreement as provided in accordance with Section 5.3(b4.2(b)(ii)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Huntsman International LLC), Agreement and Plan of Merger (Hexion Specialty Chemicals, Inc.)
No Solicitation. Until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 9.01, the Company shall not, and shall cause its Subsidiaries and the officers and directors of the Company and its Subsidiaries not to, and shall use reasonable best efforts to cause its other Representatives not to, directly or indirectly, (ai) Except as expressly permitted by solicit, initiate, endorse, knowingly facilitate or knowingly encourage the submission or announcement of any inquiries, proposals or offers that constitute or would reasonably be expected to lead to any Takeover Proposal, (ii) provide any nonpublic information concerning the Company or any of its Subsidiaries to any person or group in connection with any Takeover Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to any Takeover Proposal, or engage in any discussions or negotiations with respect to any Takeover Proposal (other than solely to inform any relevant third party of the restrictions in this Section 5.36.02), from (iii) approve, support, adopt, endorse or recommend any Takeover Proposal, (iv) take any action to make the provisions of any Takeover Law inapplicable to any person other than Parent and after its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or assist or participate in, or knowingly facilitate, any such inquiries, proposals, offers, discussions or negotiations, or (vi) resolve or agree to do any of the date hereofforegoing. Subject to Section 6.02(b), the Company shall, and shall cause its Subsidiaries and its and their respective officers and directors to, and shall use reasonable best efforts to cause its and their respective other Representatives to, (x) promptly immediately cease and cause to be terminated any discussions solicitation, encouragement, discussion or negotiations negotiation with any Third Party person or groups that may be ongoing with respect to any Acquisition Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof instruct each person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal with or for the benefit of the Company promptly to return to the Company or destroy all information, documents, and materials relating to the Takeover Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company, any proposalof its Subsidiaries or any of their respective Representatives to such person or any of its Representatives in accordance with the terms of such confidentiality agreement, inquiry and shall enforce (including by seeking an injunction) the contractual rights of the Company or offer any of its Subsidiaries under any such agreement with respect thereto, and shall enforce, and not waive, terminate or modify without Parent’s prior written consent, any standstill or similar provision in any confidentiality, standstill or other agreement with such person; provided that the Company may waive any standstill or similar provisions to the extent necessary to permit a person to make, on a confidential basis to the Company Board, a Takeover Proposal, conditioned upon such person agreeing to disclosure of such Takeover Proposal to Parent and Merger Sub, in each case as contemplated by this Section 6.02 (provided, further that the Company may only take such action if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure of the Company Board to take such action would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning be inconsistent with the Company and its SubsidiariesBoard’s fiduciary duties under applicable Law). Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the The Company shall not, and shall cause not permit any of its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and or their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposalto, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or confidentiality agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected subsequent to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither which prohibits the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse from providing to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company information required to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating be provided to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail Parent pursuant to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Section 6.02.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Hewlett Packard Enterprise Co), Agreement and Plan of Merger (Nimble Storage Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from From and after the date hereofrelated Closing Date, neither the Seller nor the originator nor any prior servicer nor any prior owner (individually and collectively, the Company shall“Prior Owners”) shall take any action or cause any action to be taken by any of the Prior Owners’ employees, and shall cause its Subsidiaries and Representatives agents or affiliates, or by any independent contractors acting on the Prior Owners’ behalf, to solicit any borrower in any manner whatsoever, including but not limited to, (x) promptly cease and cause soliciting a borrower to be terminated prepay or refinance a Mortgage Loan. Furthermore, neither the Prior Owners nor any discussions of the Prior Owners’ affiliates shall directly or negotiations with any Third Party that may be ongoing with respect indirectly provide information to any Acquisition Proposal third party for purposes of soliciting the borrowers related to the Mortgage Loans. It is understood that promotions undertaken by the Prior Owners or any proposalthe Prior Owners’ affiliates which are directed to the general public at large (i.e., inquiry newspaper advertisements, radio or offer that would reasonably be expected T.V. ads, etc.) and not specifically directed to lead the borrowers related to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its SubsidiariesMortgage Loans shall not constitute a breach of this section. Except as expressly permitted by this Section 5.3, from From and after the date hereof until the Acceptance Time, or, if earlierServicing Transfer Date, the termination Servicer hereby agrees that the Servicer will not take any action or permit or cause any action to be taken by any of this Agreement in accordance with Article 7its agents or affiliates, or by any independent contractors or independent mortgage brokerage companies on the Company shall notServicer’s behalf, and shall cause its Subsidiaries not toto personally, and shall instruct its Representatives not to on behalf of by telephone or mail, solicit the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of borrower under any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal Mortgage Loan for the purpose of refinancing such Mortgage Loan; provided, that the Company Board informing itself about such Acquisition Proposal Servicer may solicit any borrower for whom the Servicer or any of its affiliates has received a request for verification of mortgage, a request for demand for payoff, a borrower initiated written or verbal communication indicating a desire to prepay the related Mortgage Loan, or the borrower initiates a title search, provided further, it is understood and agreed that promotions undertaken by the Third Party making it; (C) make available Servicer or any non-public information regarding of its affiliates which concern optional insurance products or other additional products shall not constitute solicitation nor is the Company Servicer or its Subsidiaries affiliates prohibited from responding to any Person (other than Parentunsolicited requests or inquiries made by a borrower or an agent of a borrower. Notwithstanding the foregoing, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal the following solicitations, if undertaken by the Servicer or any proposalaffiliate of the Servicer, inquiry or offer that would reasonably shall not be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall prohibited: (i) approve solicitations or recommendpromotions that are directed to the general public at large, or publicly propose to approve or recommendincluding, any Acquisition Proposalwithout limitation, mass mailings based on mailing lists and newspaper, radio, television and other mass media advertisements; (ii) withdrawborrower messages included on, change or qualify, in a manner adverse to Parent or Merger Suband statement inserts provided with, the Company Board Recommendationmonthly statements sent to borrowers; provided, however, that similar messages and inserts are sent to all other borrowers of similar type mortgage loans serviced by the Servicer and such affiliates, including, but not limited to, those mortgage loans serviced for the Servicer’s and/or such affiliate’s own account; and (iii) approve or cause solicitations made as a part of a campaign directed to borrowers with mortgage loans meeting certain defined parameters, provided, that such solicitations are made to all borrowers of mortgage loans serviced by the Company Servicer and such affiliates with respect to enter into any merger agreementmortgage loans meeting such defined parameters, acquisition agreementincluding, memorandum of understandingbut not limited to, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include those mortgage loans serviced for the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Servicer and/or such affiliates own account.
Appears in 3 contracts
Samples: Mortgage Loan Servicing Rights Purchase and Servicing Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Ar1), Mortgage Loan Servicing Rights Purchase and Servicing Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Ar3), Mortgage Loan Servicing Rights Purchase and Servicing Agreement (Deutsche Alt-a Securities Mortgage Loan Trust, Series 2007-Ar2)
No Solicitation. (a) Except as expressly permitted by this Subject to Section 5.35.3(c), from and after at all times during the period commencing on the date hereofof this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall, and shall cause its Subsidiaries and Representatives shall not, nor shall they authorize or permit any of their respective directors, officers or other employees, controlled Affiliates, or any investment banker, attorney or other authorized agent or representative retained by any of them (collectively, “Representatives”) to, directly or indirectly, (xi) promptly cease and cause to be terminated solicit, initiate, knowingly encourage, or knowingly facilitate or assist (including by way of providing information), any discussions proposal that constitutes or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would could reasonably be expected to lead to an Acquisition Proposal, (ii) participate or engage in any discussions or negotiations with any Person (other than Parent, Merger Sub and (ytheir Representatives) request regarding any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission proposal that constitutes or would could reasonably be expected to lead to an Acquisition Proposal; , (Biii) engage in enter into any merger agreement, purchase agreement, letter of intent or knowingly facilitate similar agreement with respect to an Acquisition Transaction (other than an Acceptable Confidentiality Agreement entered into pursuant to Section 5.3(c)), (iv) release or waive any provision of, or fail to enforce any confidentiality agreement, standstill or similar agreement to which the Company or any of its Subsidiaries is a party, or (v) resolve, publicly propose or agree to do any of the foregoing. The Company and its Subsidiaries shall cease all existing discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as suchRepresentatives) in connection conducted prior to the date of this Agreement with respect to any proposal that constitutes or in response to an Acquisition Proposal or any proposal, inquiry or offer that would could reasonably be expected to lead to an any Acquisition Proposal; . Promptly after the date of this Agreement, the Company will request that each Person (Dif any) enter into any letter of intent or that has executed a confidentiality agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s RepresentativesConfidentiality Agreement) in connection with an relating to a potential Acquisition Proposal promptly return to the Company or destroy all non-public documents and materials furnished by the Company or any inquiry, discussion, offer or request that would reasonably be expected of its Representatives to lead such Person pursuant to an the terms of such confidentiality agreement and immediately terminate all physical and electronic data room access relating to a potential Acquisition ProposalProposal previously granted to any such Person. Except as expressly permitted by Notwithstanding anything to the contrary contained in this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger SubAgreement, the Company Board Recommendation, (iii) approve and its Representatives may participate in discussions solely to seek to clarify the terms and conditions of any inquiry or cause the Company to enter into proposal made by any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Person.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Raptor Pharmaceutical Corp), Agreement and Plan of Merger (Horizon Pharma PLC)
No Solicitation. (a) Except as expressly permitted by this Section 5.36.02, during the period from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by of this Section 5.3, from and after the date hereof Agreement until the Acceptance Time, or, if earlier, earlier of the Effective Time or the termination of this Agreement in accordance with Article 7Section 8.01, the Company shall not, and shall (i) cause its Subsidiaries and the respective directors and officers of each Acquired Company and (ii) instruct and use its reasonable best efforts to cause the other Representatives of each Acquired Company not to, and shall instruct its Representatives not to on behalf of the Company, directly or indirectly: (A) solicit, initiate, solicitseek or knowingly encourage (including by way of furnishing non-public information relating to any Acquired Company) any inquiry, knowingly facilitate or intentionally encourage the making of any discussion, offer or submission request that constitutes constitutes, or would could reasonably be expected to lead to to, an Acquisition Proposal; , (B) engage enter into, continue or otherwise participate in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)with, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available or furnish any non-public information regarding relating to the Company Acquired Companies to, or its Subsidiaries afford access to the books or records or officers of the Acquired Companies to, any Person (other than ParentThird Party, and Merger Sub and their respective Representatives acting in their capacities as such) in connection each case, with respect to, or in response to an Acquisition Proposal or any proposal, inquiry or offer that would could reasonably be expected to lead to to, an Acquisition Proposal, (C) grant any waiver, amendment or release of any Third Party under any standstill or confidentiality agreement; provided that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or terminate any “standstill” or similar agreement or obligation of any Third Party to the extent such agreement or obligation prohibits a confidential proposal being made to the Company Board or the Special Committee if the Company Board (acting upon the recommendation of the Special Committee) has determined in good faith, after consultation with its outside financial and outside legal advisors, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law, (D) approve, endorse, recommend or enter into into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent or intent, memorandum of understanding, agreement in principle principle, acquisition agreement, merger agreement or any other Contract concerning with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or 6.02(c) (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), ; (ivE) fail take any action to include exempt any Third Party from the Company Board Recommendation restrictions on “business combinations” contained in Section 203 of the Proxy Statement DGCL or any other applicable Takeover Statute or otherwise cause such restrictions not to apply or (vF) resolve resolve, agree, authorize or agree commit to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)foregoing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Sculptor Capital Management, Inc.), Agreement and Plan of Merger (Sculptor Capital Management, Inc.), Agreement and Plan of Merger (Rithm Capital Corp.)
No Solicitation. (a) Except as expressly permitted by this Subject to Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.35.3(b), from and after the date hereof until the Acceptance Time, Effective Time or, if earlier, the valid termination of this Agreement in accordance with Article 7, (x) the Company shall not, and shall cause its the Company Subsidiaries not to, and shall instruct its use reasonable best efforts to cause the Company Representatives not to on behalf of the Company, (A) directly or indirectly: initiate, solicitsolicit or take any action to knowingly encourage or take any other action intended to facilitate (including by way of providing material non-public information) the submission of, knowingly facilitate any Acquisition Proposal or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto to any Acquisition Proposal (other than informing any Third Party in writing of the existence of the provisions contained in this Section 5.3), except that, that the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither Neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition ProposalProposal or, if an Acquisition Proposal has been publicly disclosed, fail to publicly recommend against any such Acquisition Proposal within 10 Business Days of the request of Parent and reaffirm the Company Board Recommendation within such 10 Business Day period upon such request, (ii) withdraw, change or qualify, or propose publicly to withdraw, change or qualify, in any such case in a manner adverse to the Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each caseProposal, an “Alternative Acquisition Agreement”), or (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (viv) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”). The Company shall (A) promptly cease and cause (or in the case of the Company Representatives, use reasonable best efforts to cause) to be terminated any discussion or negotiation with any Persons conducted prior to the date hereof by the Company, the Company Subsidiaries or any of the Company Representatives with respect to any Acquisition Proposal, (B) request the prompt return or destruction of all information previously furnished to any such Person or its representatives and written certification of such return or destruction, (C) only waive any “standstill” provisions binding such Person or its representatives of which the Company is a beneficiary on the condition that such Person shall not in any way restrict the Company or the Company Representatives from complying with its obligations under this Section 5.3, provided that the Company must notify Parent of any such waiver within 24 hours, and (D) take such action as is reasonably necessary to enforce against such Person or its representatives any confidentiality provisions or provisions of similar effect to which the Company or any Company Subsidiary is a party or of which any of them is a beneficiary.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Orbitz Worldwide, Inc.), Agreement and Plan of Merger (Expedia, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after From the date hereof until the Acceptance Time, or, if earlier, earlier of the termination of Effective Time or the date on which this Agreement is terminated in accordance with Article 7the terms hereof, the Company shall not, and nor shall cause it permit any of its Subsidiaries not to, and nor shall instruct it or its Representatives not to on behalf Subsidiaries authorize or permit any of the Companytheir respective officers, directors, employees, representatives or agents to, directly or indirectly, (Ai) initiate, solicit, initiate or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding, or intentionally encourage the making of any offer or submission that proposal which constitutes or would that may reasonably be expected to lead to an Acquisition to, any Takeover Proposal; , (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (Dii) enter into any letter of intent or agreement related to any Takeover Proposal (each, an “Acquisition Agreement”) or (iii) participate in principle any discussions or negotiations regarding, or take any Contract concerning other action to facilitate any Acquisition Proposal inquiries or the making of any proposalproposal that constitutes, inquiry or offer that would may reasonably be expected to lead to, any Takeover Proposal; provided, however, that if, at any time after the date hereof and prior to the Company Shareholders Meeting the Company receives an Acquisition unsolicited bona fide written Takeover Proposal from any third Person that in the reasonable good faith judgment of the Company’s Board of Directors constitutes a Superior Proposal and the Board of Directors of the Company determines in its reasonable good faith judgment, after consultation with outside counsel, that it would be required to do so by its fiduciary duties under applicable law, the Company may, in response to such Superior Proposal, (other x) furnish information with respect to the Company to any such Person pursuant to a confidentiality agreement no more favorable to such Person than an Acceptable the Confidentiality Agreement is to Parent and (y) participate in accordance negotiations with such Person regarding such Superior Proposal if (A) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such third Person the Company or any of its Subsidiaries provides at least three business days advance written notice to Parent of the identity of the third Person making, and the proposed terms and conditions of, such Superior Proposal and a copy of all written materials delivered by such third Person to the Company or any of its Subsidiaries, (B) the Company shall have provided to Parent a copy of all written materials delivered to the third Person making the Superior Proposal in connection with such Superior Proposal and made available to Parent all materials and information made available to the third Person making the Superior Proposal in connection with such Superior Proposal and (C) the Company shall have fully complied with this Section 5.3(b)); 6.2. For purposes of this Agreement, “Takeover Proposal” means any inquiry, proposal or (E) reimburse or agree to reimburse the expenses of offer from any other Person (other than Parent and its Affiliates) relating to any direct or indirect acquisition or purchase of 20% or more of the assets of the Company and its Significant Subsidiaries or 20% or more of the voting power of the Capital Stock of the Company or the Capital Stock of any of its Significant Subsidiaries then outstanding, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the voting power of the capital stock of the Company or the Capital Stock of such Subsidiaries then outstanding, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Significant Subsidiaries, other than the transactions with Parent contemplated by this Agreement. For purposes of this Agreement, a “Superior Proposal” means any unsolicited bona fide written offer made by any Person (other than Parent and its Affiliates) to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the voting power of the capital stock of the Company then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Board of Directors of the Company determines in its reasonable good faith judgment (after consultation with its financial advisors) to be more favorable, from a financial point of view, to the Company’s Representatives) shareholders than the Merger (and any revised proposal made by Parent), which is not conditioned on any financing and which is reasonably likely to receive all required governmental approvals in the form of Final Orders prior to the End Date and is otherwise reasonably capable of being completed on the terms proposed (taking into account the ability to deliver any consideration to be paid in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”such transaction).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Exelon Corp), Agreement and Plan of Merger (Public Service Enterprise Group Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after Prior to the date hereofTermination Date, the Company shallStockholder shall not, and shall cause its Subsidiaries subsidiaries and Representatives its and its subsidiaries’ respective officers, members, directors, employees, accountants, financial and tax advisers, legal counsel and any other representatives engaged by the Stockholder or any of its Affiliates to assist the Stockholder in connection with this Agreement, the Merger Agreement or the Merger (“Representatives”) not to, directly or indirectly, (xi) promptly cease and cause to be terminated initiate, solicit or knowingly encourage or facilitate any discussions or negotiations with any Third Party that may be ongoing inquiries with respect to any Acquisition Proposal to, or any proposalthe making of, inquiry or offer that would could reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Parent Acquisition Proposal, (ii) withdrawengage in any negotiations or discussions with any Third Party concerning any Parent Acquisition Proposal, change or qualifyprovide access to its properties, books and records or any confidential or nonpublic information or data to any Third Party relating to the Parent or any of its subsidiaries, any of the Parent Joint Ventures or the Stockholder, or have or participate in any discussions with any Third Party, in a manner adverse to Parent or Merger Sub, connection with any of the Company Board Recommendationforegoing, (iii) approve approve, authorize or cause the Company to enter into any merger agreementterm sheet, acquisition agreementletter of intent, commitment, memorandum of understanding, agreement in principle, investment acquisition agreement, letter of intent merger agreement or other similar agreement (whether written or oral, binding or nonbinding) in connection with or relating to any Parent Acquisition Proposal (other than an Acceptable Confidentiality Agreement). The Stockholder also agrees that, immediately following the execution of this Agreement, it shall (and shall use reasonable best efforts to cause each of its subsidiaries and its and their Representatives to) immediately (1) cease any solicitations, discussions or negotiations with any Third Party in connection with a Parent Acquisition Proposal or any potential Parent Acquisition Proposal and (2) terminate each Third Party’s access to any physical or electronic data rooms relating to any potential Parent Acquisition Proposal. The Stockholder also agrees that following the execution of this Agreement it will promptly request each Third Party that has prior to the date hereof executed a confidentiality agreement that is currently in effect in connection a Parent Acquisition Proposal or potential Parent Acquisition Proposal to return or destroy all confidential information furnished to such Third Party by or on behalf of it or any of its subsidiaries prior to the date hereof. The Stockholder shall promptly notify the Company of the receipt of (A) any Parent Acquisition Proposal after the execution of this Agreement, (B) any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in, or lead to, a Parent Acquisition Proposal, or (C) any discussions or negotiations sought to be initiated or continued with the Stockholder, Parent, any of its subsidiaries or its or their Representatives concerning a Parent Acquisition Proposal, which notice shall include a summary of the material terms and conditions of any such proposal or offer regarding a Parent Acquisition Proposal, including any financial and other terms thereof, in each casecase including any modifications thereto. Notwithstanding anything in this Agreement to the contrary, an “Alternative Acquisition Agreement”(x) the Stockholder (in its capacity as such) shall not be responsible for the actions of Parent or its Board of Directors (or any Committee thereof), any Affiliate of Parent (iv) fail to include other than the Company Board Recommendation Stockholder), or any officers, directors (in the Proxy Statement or (v) resolve or agree to do their capacity as such), employees and Representatives of any of the foregoing (the “Parent Related Parties”), including with respect to any action set forth in of the foregoing clauses (imatters contemplated by this Section 5(a), (ii)y) the Stockholder (in its capacity as such) makes no representations or warranties with respect to the actions of any of the Parent Related Parties, and (ivz) any breach by Parent of its obligations under Section 6.2(a) of the Merger Agreement shall not be considered a breach of this Section 5(a) (it being understood for the avoidance of doubt that the Stockholder shall remain responsible for any breach by it or its Representatives (vother than any such Representative that is a Parent Related Party) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentenceSection 5(a), a “Change of Board Recommendation”).
Appears in 2 contracts
Samples: Support Agreement (Sunrun Inc.), Support Agreement (Vivint Solar, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3During the Pre-Closing Period, from and after except in connection with the date hereofTransactions, the Company shallSeller shall not, and shall cause the other Seller Parties and its Subsidiaries and their respective Affiliates and Representatives not to, directly or indirectly, (xa) promptly cease and cause solicit or initiate or induce or encourage, or take any other action to be terminated facilitate, any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal Alternative Transaction or any proposal, inquiry or offer proposal that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the CompanyAlternative Transaction, (Ab) initiateenter into, solicit, knowingly facilitate continue or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage otherwise participate in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)regarding, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries furnish to any Person (other than Parentperson any information in furtherance of, and Merger Sub and their respective Representatives acting or otherwise cooperate in their capacities as such) any way in connection with or in response to an Acquisition Proposal furtherance of, any Alternative Transaction or any proposal, inquiry or offer proposal that would reasonably be expected to lead to an Acquisition Proposal; Alternative Transaction, or (Dc) approve, endorse, recommend, execute or enter into any Contract, letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreementintent, memorandum of understanding, agreement in principle, investment joint venture agreement, letter of intent partnership agreement or other merger, acquisition or similar agreement constituting, contemplating or otherwise relating to any Acquisition Proposal (in each caseAlternative Transaction or any inquiry or proposal that could reasonably be expected to lead to an Alternative Transaction. For the avoidance of doubt, an “Alternative Acquisition Agreement”), (iv) fail to include it is understood and agreed that the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do foregoing shall not prohibit any of the foregoing (Seller Parties or their respective Affiliates or Representatives from responding to inquiries by any action set forth Person about a possible Alternative Transaction in order to inform such Person of the foregoing clauses (i)existence of the obligations contained in this Section 7.15; provided, (ii)that Seller shall promptly notify Buyer of the receipt by any of the Seller Parties or, (iv) to Seller’s Knowledge, their respective Affiliates or (v) Representatives, of this sentence (any inquiry or proposal relating to an Alternative Transaction in respect of the Purchased Assets or the Brand, which notice shall identify the Purchased Assets that are the subject of such inquiry or proposal, and, to the extent related not prohibited by a confidentiality agreement in place on or before the date hereof, Seller shall (x) promptly notify Buyer of the material terms thereof and the identity of the person or group involved, (y) promptly furnish Buyer with a copy of any written inquiry, proposal or other information relating to the foregoing clauses such Alternative Transaction, and (iz) keep Buyer informed on a current basis of any modifications to such inquiry, proposal or (ii) of this sentence), a “Change of Board Recommendation”)other information.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Constellation Brands, Inc.), Asset Purchase Agreement (Constellation Brands, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from From and after the date hereofof this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shalland its subsidiaries will not, and shall cause its Subsidiaries and Representatives nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (xi) promptly cease and cause to be terminated solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) 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 Acquisition Proposal, (iii) engage in discussions with any Third Party that may be ongoing person with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party except as to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)these provisions, except that(iv) approve, the Company may ascertain facts from endorse or recommend any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (Dv) enter into any letter of intent or agreement in principle similar document or any Contract concerning contract agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that after receipt of an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of the Company reasonably concludes may constitute a Superior Offer, the Company may on one occasion submit to the party making such Acquisition Proposal a written list of questions, the sole purpose of which is to elicit clarifications as to the material terms of the Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether such Acquisition Proposal is in fact a Superior Offer (it being agreed that any correspondence with such party shall be limited to questions and such questions shall be limited to the purpose of clarifying the material terms of such Acquisition Proposal and shall not solicit or encourage any new Acquisition Proposal or any proposalchange to the Acquisition Proposal, inquiry or offer and it being further agreed that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance the Company shall provide Parent with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses a copy of any other Person (other than the Company’s Representativescorrespondence to be delivered pursuant to this Section 5.5(a) in connection at least 48 hours prior to sending such correspondence to any third party). The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected parties conducted heretofore with respect to lead to an any Acquisition Proposal. Except as expressly permitted by this Section 5.3Without limiting the foregoing, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor it is understood that any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any violation of the foregoing (any action restrictions set forth in the foregoing clauses (i)preceding two sentences by any officer, (ii)director or employee of the Company or any of its subsidiaries or any investment banker, (iv) attorney or (v) other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this sentence (to Section 5.5 by the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Company.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (At Home Corp), Agreement and Plan of Reorganization (Excite Inc)
No Solicitation. (a) Except as expressly permitted by During the period beginning on the date of this Section 5.3, from Agreement and continuing until 11:59 p.m. (New York time) on the date that is forty-five (45) days after the date hereofof the public announcement of this Agreement (the “Solicitation Period End Date”), the Company, the Company shallSubsidiaries and the Company Representatives shall be permitted to, and shall cause its Subsidiaries and Representatives have the right to, directly or indirectly (xacting under the direction of the Company Board) promptly cease (i) solicit, initiate or encourage any Acquisition Proposal (or inquiries, proposals or offers or other efforts that may lead to an Acquisition Proposal) and cause (ii), subject to be terminated any compliance with Sections 5.4(d), (e) and (f), participate in discussions or negotiations with regarding, and furnish to any Third Party that may be ongoing person information with respect to, and take any other action to facilitate any Acquisition Proposal inquiries or the making of any proposalproposal that constitutes, inquiry or offer that would reasonably be expected to lead to to, an Acquisition Proposal; provided, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3however, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, that the Company shall not, and shall not authorize or permit any of the Company Subsidiaries or any Company Representatives to, provide to any third party any material non-public information unless the Company receives from such third party an executed confidentiality agreement with confidentiality provisions (including customary standstill and non-solicitation provisions for such a transaction) no more favorable to such person than those confidentiality provisions contained in the Confidentiality Agreement, provided, that, the Company shall promptly provide to Parent any material non-public information concerning the Company or the Company Subsidiaries that is provided to any person given such access but which was not previously provided to Parent and its Representatives. Parent agrees that, during the period from the date hereof to and the end of the Solicitation Period End Date, neither it nor any affiliate or Parent Subsidiary shall, and that it shall use its reasonable best efforts to cause its Subsidiaries the Parent Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (A) initiate, solicitcontact, knowingly facilitate discourage, knowingly interfere with or intentionally encourage the making of participate in discussions with, any offer person that, to Parent’s knowledge, has made, or submission that constitutes is considering or would reasonably be expected to lead to an Acquisition Proposal; (B) engage participating in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except thatCompany, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of Subsidiaries or the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than ParentRepresentatives regarding, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (ASP GT Holding Corp.), Agreement and Plan of Merger (Gentek Inc)
No Solicitation. (a) Except as expressly permitted by At all times during the period commencing with the execution and delivery of this Section 5.3, from Agreement and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof continuing until the Acceptance Time, or, if earlier, earlier to occur of the termination of this Agreement in accordance with Article 7pursuant to Section 7.01 and the Effective Time, the Company shall not, shall cause all of the Company Subsidiaries not to and shall use its reasonable best efforts to cause its Subsidiaries the Company’s and such Company Subsidiaries’ directors, officers, employees, investment bankers, attorneys and other agents or representatives (collectively, “Representatives”) not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) solicit, initiate, solicitknowingly encourage or knowingly induce the making, knowingly facilitate submission or intentionally encourage the making announcement of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from furnish to any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding relating to the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal (for avoidance of doubt, it being understood that the foregoing shall not prohibit the Company, any Company Subsidiary or any inquiryof their respective Representatives from furnishing, discussionin the ordinary course of business, offer any non-public information to (A) any actual or request that would reasonably be expected potential customer, supplier, distributor, licensor, licensee, partner or other Person to lead the extent necessary to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither facilitate any business dealings between the Company Board nor any committee thereof shall (i) approve and such actual or recommendpotential customer, supplier, distributor, licensor, licensee, partner or publicly propose other Person that are unrelated to approve or recommend, any Acquisition Proposal, or (iiB) withdrawa Governmental Entity); (iii) participate or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal (for avoidance of doubt, change it being understood that the foregoing shall not prohibit the Company, any Company Subsidiary or qualifyany of its Representatives from making such Person aware of the restrictions of this Section 5.03 in response to the receipt of an Acquisition Proposal, nor shall it prohibit the Company from engaging in discussions with its Representatives to the extent reasonably necessary to assist the Company in determining how to properly respond to such Acquisition Proposal); or (iv) approve, endorse or recommend to the stockholders of the Company any Acquisition Proposal; provided, however, that notwithstanding anything to the contrary contained in this Agreement, at any time before obtaining the Company Stockholder Approval, the Company may, directly or indirectly through its Representatives, (A) engage or participate in discussions or negotiations with any Person (and may engage or participate in discussions or negotiations with such Person’s Representatives and potential financing sources) that has made an Acquisition Proposal that the Company Board determines in good faith (after consultation with its outside legal counsel and financial advisor) constitutes or is reasonably likely to lead to a manner adverse Superior Proposal, and (B) furnish to any such Person described in clause (A) above (including to such Person’s Representatives and potential financing sources) any non-public information relating to the Company and the Company Subsidiaries pursuant to a confidentiality agreement (whether executed before or after the date of this Agreement), the terms of which are no less favorable in any material respect to the Company than those contained in the letter agreement, dated February 4, 2009, between Parent and the Company (the “Confidentiality Agreement”) (provided that, for the avoidance of doubt, such confidentiality agreement is not required to contain standstill provisions); and provided further, that in the case of any action taken pursuant to clause (A) or Merger Subclause (B) above, the Company Board Recommendation, shall first have determined in good faith (iiiafter consultation with its outside legal counsel) approve or cause that the failure to take such action is inconsistent with its fiduciary obligations to the stockholders of the Company under applicable Legal Requirements; and contemporaneously with furnishing any nonpublic information to enter into any merger agreementsuch Person, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree furnishes such nonpublic information to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence Parent (to the extent related such information has not been previously furnished by the Company to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”Parent).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ligand Pharmaceuticals Inc), Rights Agreement (Neurogen Corp)
No Solicitation. (a) Except as expressly permitted by otherwise provided in this Section 5.3, from neither the Company, WFB nor WFS shall, and each of them will cause their respective Subsidiaries and their Subsidiaries’ officers, directors, employees, agents, and advisors (collectively, “Representatives”) not to, encourage, solicit, participate in, initiate or knowingly facilitate inquiries or proposals with respect to, or engage in any discussions or negotiations with, or provide any information to, any Person (other than the Purchaser or its Subsidiaries, or any of their respective Representatives) with respect to any offer or proposal concerning an Alternative Transaction (an “Acquisition Proposal”); provided, however, that the Company may, in response to a request for information or access by any Person making a written Acquisition Proposal to the Company’s board of directors, made after the date hereof that was not encouraged, solicited or initiated by the Company, WFB, WFS or any of their respective Representatives on or after the date hereof, directly or indirectly, furnish information and access pursuant to a confidentiality agreement with such Person on terms no less favorable to the Company shallthan the Confidentiality Agreement, and may participate in discussions and negotiate with such Person concerning any such Acquisition Proposal, in each case if and only if (i) such Acquisition Proposal constitutes or may reasonably be expected to lead to a Superior Proposal, and (ii) the Company’s board of directors and the Company Special Committee, after consultation with outside legal counsel, believes in good faith that such action is necessary for the Company’s board of directors to comply with their fiduciary duties to the shareholders of the Company. The Company shall cause its Subsidiaries and Representatives to, (x) promptly immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing Persons other than the Purchaser with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause use its Subsidiaries not to, and shall instruct its Representatives not reasonable best efforts to on behalf of the Company, (A) initiate, solicit, knowingly facilitate enforce any confidentiality or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or similar agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead relating to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from The Company shall promptly (and after in any event within one business day) notify the date hereof until Purchaser and the Acceptance Time, or, if earlier, the termination WFS Special Committee upon receipt of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any written Acquisition Proposal, shall provide the Purchaser and the WFS Special Committee with the material terms and conditions of such proposal, and shall keep the Purchaser and the WFS Special Committee apprised of any related developments, discussions and negotiations on a current basis (iibut in no event, later than twenty-four (24) withdrawhours of any material developments, change discussions or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement negotiations relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”such proposal).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wachovia Corp New), Agreement and Plan of Merger (Westcorp /Ca/)
No Solicitation. Shareholder agrees that, during the Effective Period, Shareholder shall not, directly or indirectly,: (ai) Except as expressly permitted by this Section 5.3solicit, from and after initiate, knowingly facilitate or knowingly encourage the date hereofmaking, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions submission or negotiations with any Third Party that may be ongoing with respect to announcement of any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition ProposalInquiry; (Bii) engage in or knowingly facilitate furnish any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public nonpublic information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition ProposalInquiry; (Diii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry (other than to indicate to such Person that the Shareholder is subject to the restrictions set forth in this Section 7); (iv) approve, endorse, or recommend any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or agreement in principle similar document or any Contract concerning contemplating or otherwise relating to any Acquisition Transaction. Shareholder shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal or Acquisition Inquiry. Notwithstanding the foregoing, at any proposaltime following: (A) the time on the date of any change described in clauses “(A)” through “(F)” of Section 1.2(c) of the Master Agreement, inquiry in each case that is not consented to in writing by Shareholder in Shareholder’s sole discretion; (B) the modification or offer that would reasonably be expected termination for any reason of the Interpark Agreement to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b))Tender; or (EC) reimburse the withdrawal or agree to reimburse the expenses modification of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in response to a Superior Offer or the Proxy Statement or (vrecommendation of a Superior Offer to the Company’s shareholders, the Shareholder shall be permitted to engage in discussions and negotiations with any Person with respect to the Shareholder’s willingness to enter into an agreement with respect to the Superior Offer similar to this Agreement. Notwithstanding anything to the contrary in this Section 7, in the event that the Company is permitted to engage in discussions and negotiations with a third party relating to an Acquisition Proposal pursuant to Section 4.3(b)(ii) resolve or agree to do any of the foregoing (any action set forth Master Agreement, Shareholder and Shareholder’s Representatives shall be permitted to engage in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (discussions and negotiations with such third party relating to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)such Acquisition Proposal.
Appears in 2 contracts
Samples: Agreement to Tender and Voting Agreement (Ebay Inc), Agreement to Tender and Voting Agreement (Ebay Inc)
No Solicitation. (a) Except The Company shall not, and it shall cause the Subsidiaries and the officers, directors, employees, agents and representatives of the Company or any of the Subsidiaries (collectively, the "Company Representatives") not to, (i) solicit or initiate, or encourage, directly or indirectly, any inquiries regarding or the submission of, any Takeover Proposal (as expressly permitted by defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information or data with respect to, or take any other action to facilitate the making of any proposal that constitutes, or may reasonably be expected to lead to, any Takeover Proposal. Upon execution of this Section 5.3, from and after the date hereofAgreement, the Company shall, and it shall cause its Subsidiaries and the Company Representatives to, (x) promptly immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing parties conducted heretofore with respect to any Acquisition of the foregoing. Notwithstanding the foregoing, prior to the date of the Company Shareholders' Meeting, the Company may furnish information concerning its business, properties or assets to any Person or group pursuant to a customary confidentiality agreement (provided that such confidentiality agreement(s) may not include any provision granting any such Person or group an exclusive right to negotiate with the Company), and may negotiate and participate in discussions and negotiations with such Person or group concerning a Takeover Proposal if: (x) such Person or group has submitted a bona fide written proposal to the Board of Directors relating to any proposal, inquiry or offer that would such transaction which the Board of Directors determines in good faith is reasonably be expected likely to lead to an Acquisition represent a Superior Proposal, ; and (y) request the Board of Directors determines in good faith, based upon advice of outside counsel, that such action is required to discharge the Board's fiduciary duties to the Company's shareholders under the Washington Act. The Company shall not release any third party from, or waive any provision of, any such Third Party confidentiality agreement or any other confidentiality or standstill agreement to promptly return or destroy all confidential information concerning which the Company and its Subsidiariesis a party. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the The Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party will promptly notify Merger Sub of the existence of any Takeover Proposal received by the provisions contained in this Section 5.3)Company, except that, and the Company will immediately communicate to Merger Sub the terms of any Takeover Proposal which it may ascertain facts from receive (and will promptly provide to Merger Sub copies of any written materials received by the Company in connection with such proposal, discussion, negotiation or inquiry, including any amendments or proposed amendments to such proposal) and the identity of the Person making an Acquisition such Takeover Proposal for the purpose of the or engaging in such discussion or negotiation. The Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available will promptly provide to Merger Sub any non-public information regarding concerning the Company or its Subsidiaries provided to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) which was not previously provided to Merger Sub. As used in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlierAgreement, the termination of this Agreement in accordance with Article 7, neither following terms have the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action meanings set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).below:
Appears in 2 contracts
Samples: Ii Agreement and Plan of Merger (Cobalt Group Inc), Agreement and Plan of Merger (Warburg Pincus Equity Partners Lp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the The Company shall not, and shall cause directly or indirectly through any officer, director, employee, representative or agent of the Company or any of its Subsidiaries not (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries), (i) make any offer or proposal to any Person to, and shall instruct its Representatives not to on behalf directly or indirectly, (A) sell, issue or otherwise transfer any capital stock (including, without limitation, by way of a tender offer) of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in sell or knowingly facilitate otherwise transfer any discussions material assets or negotiations with respect thereto properties of the Company or any of its Subsidiaries (other than informing any Third Party of Permitted Transactions on the existence of terms previously disclosed in writing to the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; Investors) or (C) make available effect any recapitalization, refinancing, restructuring, merger, consolidation or other business combination involving the Company (any of the foregoing referred to herein as an "Alternative Transaction"), (ii) grant any waivers with respect to Section 203 of the DGCL to any third parties, (iii) solicit or encourage the initiation of (including by way of furnishing information) any inquiries or proposals regarding any Alternative Transaction (an "Acquisition Proposal") or (iii) have any discussion with or provide any non-public information regarding the Company or its Subsidiaries data to any Person (other than Parentthird party that would encourage, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with facilitate or in response to further an Acquisition Proposal Proposal, or engage in any proposalnegotiations concerning an Acquisition Proposal, inquiry or offer that would reasonably be expected knowingly facilitate any effort or attempt to lead to make or implement an Acquisition Proposal; provided that the Company may have discussions with and provide non-public information and data (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer but only to the extent that would reasonably be expected such information was previously provided to lead the Investors prior to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination execution of this Agreement or is provided to the Investors concurrently therewith) to a third party that has made an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (x) the Board of Directors determines in accordance with Article 7, neither the Company Board nor any committee thereof shall good faith (i) approve or recommendthat such Acquisition Proposal would, or publicly propose if consummated, be reasonably likely to approve or recommend, any Acquisition Proposal, constitute a Superior Proposal (as hereinafter defined) and (ii) withdrawafter consulting with outside legal counsel, change or qualify, in that failing to take such action would constitute a manner adverse breach of the fiduciary obligations of the Board of Directors under applicable Law and (y) prior to Parent or Merger Subtaking such action, the Company Board Recommendation, provides reasonable notice to the Investors (iiinot later than 48 hours prior to taking any such action) approve or cause to the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, effect that it is taking such action and receives from such Person an executed confidentiality/standstill agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)reasonably customary form.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Seabulk International Inc), Stock Purchase Agreement (Seabulk International Inc)
No Solicitation. (a) Except During the Pre-Closing Period, except as expressly permitted by this Section 5.3, from and after the date hereof5.7(b), the Company shallshall not, and shall not (and shall cause its Subsidiaries not to) authorize or permit its and its Subsidiaries’ directors, officers, employees, investment bankers, financial advisors, attorneys, accountants, agents and other representatives (collectively, “Representatives”) to (and shall direct and use reasonable best efforts to cause its and its Subsidiaries’ Representatives not to), directly or indirectly, (xi) promptly cease and cause to be terminated initiate, solicit, knowingly encourage, induce or facilitate (including through the furnishing of any discussions nonpublic information) the submission or negotiations announcement of, or otherwise cooperate with or assist in, any Third Party that may be ongoing with respect to any Acquisition Takeover Proposal or any proposalinquiry, inquiry indication of interest or offer proposal that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition a Takeover Proposal; (Bii) engage participate in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries with respect to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Takeover Proposal or any proposalinquiry, inquiry indication of interest or offer proposal that would reasonably be expected to lead to an Acquisition a Takeover Proposal; (Diii) approve, endorse or recommend any Takeover Proposal; (iv) enter into any letter of intent or agreement in principle similar document or any Contract concerning contemplating or otherwise relating to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Takeover Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(bAgreement)), or any Contract requiring the Company to abandon, terminate or fail to consummate the Transactions; (v) submit any Takeover Proposal to a vote of the shareholders of the Company; or (Evi) reimburse or resolve, agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth foregoing. Notwithstanding the foregoing, nothing contained in this Section 5.7(a) or elsewhere in this Agreement shall prohibit the Company or the Company’s Board from stating and disclosing to the Company’s shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14a-9, 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act; provided, however, that in no event shall the foregoing clauses affect the obligations of the Company specified in Section 5.7(d)(i) (i)it being understood that any “stop, (ii), (ivlook and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Change Recommendation) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Article 7.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Insight Enterprises Inc), Agreement and Plan of Merger (Datalink Corp)
No Solicitation. (a) Except as expressly permitted The Company shall not, and shall cause each of its Subsidiaries not to, and shall cause each of the foregoing person’s respective directors, officers, management personnel, Affiliates, investment bankers, financial advisors, attorneys, accountants and other advisors, agents and representatives (collectively, “Representatives”) retained by it or any of its Subsidiaries not to, directly or indirectly through another person, (i) solicit, initiate or knowingly encourage, or take any other action designed to, or which could reasonably be expected to, facilitate, any Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information relating to any Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Subsidiary of the Company and/or any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 5.3, from and after 4.02(a) by the date hereof, the Company. The Company shall, and shall cause its Subsidiaries to, and shall cause each of their respective Representatives to, (x) promptly immediately cease and cause to be terminated any all existing discussions or negotiations with any Third Party that may be ongoing person conducted heretofore with respect to any Acquisition Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any proposaltime prior to obtaining the Shareholder Approval, inquiry in response to a bona fide written Takeover Proposal that the Board of Directors of the Company reasonably determines (after consultation with outside counsel and a financial advisor of nationally recognized reputation) constitutes or offer that would reasonably be expected to likely lead to an Acquisition 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 breach of this Section 4.02(a), the Company may, subject to compliance with Section 4.02(c), (yA) request any such Third Party furnish non-public information with respect to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3Subsidiaries to the person making such Takeover Proposal (and its Representatives) pursuant to a customary confidentiality and standstill agreement not less restrictive to such person than the provisions of the Confidentiality Agreement, from and after provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrently with the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall nottime it is provided to such person, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage participate in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Takeover Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s and its Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition regarding such Takeover Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Advo Inc), Agreement and Plan of Merger (Valassis Communications Inc)
No Solicitation. HFP will not, and will not permit or --------------- cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to, and shall direct and cause its and its Subsidiaries' employees, agents and representatives (aincluding any advisor, investment banker, attorney or accountant retained by it or any of its Subsidiaries) Except ("Representatives") not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing non-public information), any inquiries or the making of any proposal or offer with respect to a tender offer, merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of any substantial assets or voting securities of, HFP and its Subsidiaries taken as expressly permitted by this Section 5.3a whole (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")). HFP will not, from and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct and cause its and its Subsidiaries' employees, agents and Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, whether made before or after the date hereofof this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that prior to the Company shallapproval of the Merger by the HFP Stockholders HFP may, and shall cause may authorize and permit its Subsidiaries employees, agents and Representatives to, furnish or cause to be furnished confidential information and may participate in unsolicited negotiations and discussions if the HFP Board (xa) promptly determines in good faith (after consultation with and based upon the advice of outside legal counsel) that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable law, and (b) determines in good faith, after consultation with its financial advisor, that such Acquisition Proposal is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal, and would, if consummated, result in a transaction more favorable to HFP's shareholders from a financial point of view than the transaction contemplated by this Agreement, but only if (i) prior to furnishing such information to, or entering into discussions or negotiations with such person or entity, HFP receives from such person or entity an executed confidentiality agreement in substantially the same form as the Confidentiality Agreement and (ii) HFP is not then in breach of its obligations under this Section such that Xxxxxx would have the right to terminate the Merger Agreement pursuant to Section 8.1(b) hereof. HFP will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing parties conducted heretofore with respect to any Acquisition Proposal of the foregoing. HFP will notify Xxxxxx immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any proposalsuch discussions or negotiations are sought to be initiated or continued with, inquiry any of its officers, directors or offer that would reasonably be expected to lead to an Acquisition Proposalits Representatives indicating, in connection with such no- xxxx, the name of such person and (y) request the material terms and conditions of any such Third Party to promptly return proposals or destroy all confidential information concerning offers. During the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, period from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7through the Effective Time, the Company HFP shall notnot terminate, and shall cause amend, modify or waive any provision of any confidentiality or standstill agreement to which it or any of its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in is a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Healthcare Financial Partners Inc), Agreement and Plan of Merger (Heller Financial Inc)
No Solicitation. Until the earlier of (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, Closing and (yb) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7pursuant to its terms, the Company shall Seller will not, and shall will cause its Subsidiaries not to, and shall instruct will direct its Representatives not to on behalf (i) initiate, solicit or knowingly encourage (including by way of furnishing information regarding the Business) the submission of any proposal concerning the sale of all or any material part of the CompanyBusiness (a “Competing Transaction”) (whether by way of merger, purchase of capital shares, purchase of assets or otherwise, other than any transaction involving an indirect sale of the Business in connection with a sale of all or substantially all of Seller’s business, provided that nothing in this Section 7.2 shall be deemed to obviate Seller’s obligation to consummate the Transactions in accordance with this Agreement) or (Aii) initiatehold any discussions or enter into any agreements with, or provide any information or respond to, any Third Party concerning a proposed Competing Transaction (other than to inform such Third Party of its obligations under this Section 7.2) or cooperate with, agree to, assist or participate in, solicit, knowingly facilitate or intentionally knowingly encourage any effort or attempt by any Third Party to do or seek any of the making foregoing. If at any time prior to the earlier of (x) the Closing and (y) the termination of this Agreement pursuant to its terms, Seller or any Subsidiary is approached in any manner by a Third Party concerning a Competing Transaction (a “Competing Party”), Seller will, subject to any pre-existing confidentiality obligations, promptly inform Purchaser regarding such contact and furnish Purchaser with a copy of any offer inquiry or submission proposal, or, if not in writing, a description thereof, including the name of such Competing Party, and Seller will keep Purchaser informed of the status and details of any future notices, requests, correspondence or communications related thereto. Seller will, will cause its Subsidiaries to, and direct its Representatives to, cease immediately and cause to be terminated all discussions and negotiations that constitutes commenced prior to the Execution Date regarding any proposal that constitutes, or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence)to, a “Change of Board Recommendation”)Competing Transaction.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Laboratory Corp of America Holdings), Asset Purchase Agreement (Genzyme Corp)
No Solicitation. (a) 5.3.1 Except as expressly permitted by and subject to this Section 5.3, from and after the date hereof, the Company shallwill, and shall will cause its Subsidiaries and their respective Representatives to, (x) promptly cease and terminate (or cause to be terminated terminated) any discussions or negotiations with any Third Party and its Affiliates and Representatives that may be ongoing with respect to, or which may reasonably be expected to lead to, any Acquisition Proposal, (y) promptly request any such Third Party to promptly return or destroy all confidential information furnished by or on behalf of the Company and its Subsidiaries in accordance with the Acceptable Confidentiality Agreements and (z) terminate access by any Third Party and its Affiliates and Representatives to any data room (virtual, online or otherwise) maintained by or on behalf of the Company and its Subsidiaries. Except as expressly permitted by and subject to this Section 5.3, from and after the date hereof, or, if earlier, until the termination of this Agreement in accordance with Article 7, the Company will not, and will cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, (A) initiate, solicit, knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal, (B) engage in, continue or otherwise participate in any discussions or negotiations that could reasonably be expected to lead to the submission of any Acquisition Proposal (other than to state that the terms of this provision prohibit such discussions), (C) provide any non-public information to any Person in connection with any Acquisition Proposal or any proposal, inquiry proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, and (yD) request any such Third Party waive, terminate, modify, fail to promptly return enforce or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to release any Person (other than Parent, and Merger Sub and their respective Representatives acting Affiliates and Representatives) under any “standstill” or similar agreement or obligation (other than a limited waiver under any confidentiality or similar agreement in their capacities as such) in connection with or in response existence prior to an the date hereof, to the extent necessary to allow for a confidential Acquisition Proposal to be made to the Company), or exempt any proposalperson (other than Parent, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; Merger Sub and their respective Affiliates and Representatives) from the restrictions under Takeover Laws, (DE) enter into any letter of intent or acquisition agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected with respect to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (vF) formally propose, resolve or agree to do any of the foregoing (foregoing. Without limiting the foregoing, it is agreed that any action breach of the restrictions set forth in this Section 5.3.1 by any Representative or Affiliate of the foregoing clauses (i)Company or any of its Subsidiaries, (ii)whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, (iv) or (v) shall be deemed to be a breach of this sentence (to Section 5.3.1 by the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SMTC Corp), Agreement and Plan of Merger (SMTC Corp)
No Solicitation. (a) Except During the Pre-Closing Period, except as expressly permitted by otherwise specifically provided for in this Section 5.3, from and after the date hereof5.2, the Company shallagrees that it shall not (and that the Company shall cause each Company Subsidiary and the directors and officers of the Company and the Company Subsidiaries not to), and that it shall use reasonable best efforts to cause its Subsidiaries and other Representatives not to, directly or indirectly (xi) promptly cease and cause solicit, initiate or knowingly encourage or knowingly facilitate the submission or an announcement of any Company Competing Proposal, (ii) participate in any negotiations regarding, or furnish to be terminated any discussions Person any nonpublic information relating to the Company or negotiations any Company Subsidiary in connection with any Third Party that may be ongoing with respect to any Acquisition Company Competing Proposal or any proposal, inquiry proposal or offer that would constitutes or could reasonably be expected to lead to an Acquisition a Company Competing Proposal, (iii) engage in discussions with any Person with respect to any Company Competing Proposal or any proposal or offer that constitutes or could reasonably be expected to lead to a Company Competing Proposal, (iv) approve or recommend, propose publicly to approve or recommend, or fail to timely recommend against, any Company Competing Proposal, (v) withdraw, change, amend, modify or qualify, or otherwise propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, or (vi) enter into any letter of intent or other document or agreement relating to, or any agreement or commitment providing for, any Company Competing Proposal (an “Alternative Acquisition Agreement” and any act described in clauses (iv) and (yv) request above, a “Company Change of Recommendation”). The Company shall immediately cease, and shall use commercially reasonable efforts to cause its Representatives to immediately cease, any such Third Party and all existing discussions or negotiations with any parties conducted heretofore with respect to any Company Competing Proposal. The Company shall promptly return or destroy all confidential information concerning following the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination execution of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct inform its Representatives not to on behalf of the Company’s obligations under this Section 5.2. For purposes of this Section 5.2, the term “Person” includes any Person or “group,” as defined in Section 13(d) of the Exchange Act, other than, with respect to the Company, Parent. The Company and the Company Subsidiaries and the Company’s Representatives may in any event (A) initiate, solicit, knowingly facilitate or intentionally encourage seek to clarify and understand the making terms and conditions of any offer bona fide, written Company Competing Proposal (or submission amended proposal) that did not result from a material breach of Section 5.2(a) solely to determine whether such Company Competing Proposal constitutes or would reasonably be expected to lead to an Acquisition Proposal; a Company Superior Proposal and (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence inform a Person that has made a Company Competing Proposal of the provisions contained in of this Section 5.3)5.2, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”)so long as the Company, (iv) fail to include the Company Board Recommendation Subsidiaries and the Company’s Representatives otherwise comply with this Section 5.2 in connection therewith. The Company shall not terminate, waive, amend or modify any provision of any standstill or confidentiality agreement to which the Proxy Statement or (v) resolve or agree Company is a party, in each case, with respect to do the submission of any of the foregoing (any action set forth in the foregoing clauses (i)Company Competing Proposal, (ii), (iv) or (v) of this sentence (except to the extent related to allow the applicable party to make a confidential Company Competing Proposal to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Company Board.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vascular Solutions Inc), Agreement and Plan of Merger (Teleflex Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after Each of the date hereofStockholder, the Company shall, KKR Investors and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party the GA Investors hereby agree that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company it shall not, and shall cause its Subsidiaries respective Affiliates and shall use its reasonable best efforts to cause its and its respective Affiliates’ Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) solicit, initiate, solicitknowingly induce, knowingly encourage or knowingly facilitate any inquiries or intentionally encourage the making of any proposal or offer or submission that constitutes constitutes, or would reasonably be expected to lead to an to, a Company Acquisition Proposal; (Bii) engage participate in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an regarding any proposal the consummation of which would constitute a Company Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making itProposal; (Ciii) make available provide any non-public information regarding or data concerning the Company or any of its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with any proposal the consummation of which would constitute a Company Acquisition Proposal; or in response to an Acquisition Proposal (iv) approve or recommend, make any proposalpublic statement approving or recommending, inquiry or enter into any agreement relating to, any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to an to, a Company Acquisition Proposal; . Each of the Stockholder, the KKR Investors and the GA Investors agree that it shall immediately cease and cause to be terminated, and cause its respective Affiliates and shall use its reasonable best efforts to cause its and its respective Affiliates’ Representatives to immediately cease and cause to be terminated, all discussions or negotiations with any Person conducted heretofore with any Person other than Parent and/or its Representatives with respect to any Company Acquisition Proposal. Notwithstanding the foregoing, each of the Stockholder, the KKR Investors or the GA Investors, directly or indirectly through their respective Affiliates, Representatives, advisors or other intermediaries, may, prior to the time, but not after, the Company Stockholder Approval is obtained, engage in negotiations or discussions with any Person (Dand its Representatives, advisors and intermediaries) enter into any letter of intent or agreement in principle or any Contract concerning any that has made an unsolicited bona fide written Company Acquisition Proposal to the Company, its Subsidiaries or Representatives not resulting from or arising out of a breach, in any proposalmaterial respect, inquiry of (x) this Section 5.2 or offer (y) the provisions of Section 5.2 of the Merger Agreement; provided, that each of the Stockholder, the KKR Investors or the GA Investors, directly or indirectly through their respective Affiliates, Representatives, advisors or other intermediaries, shall be permitted to engage in such negotiations or discussions if, and only if, prior to doing so, the Stockholder, the KKR Investors or the GA Investors, as applicable, have provided prior written notice thereof to Parent and the Company Board determines in good faith after consultation with outside legal counsel that (A) based on the information then available and after consultation with a financial advisor of nationally recognized reputation that such Company Acquisition Proposal either constitutes a Company Superior Proposal or could reasonably be expected to result in a Company Superior Proposal and (B) the failure to take such action would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance be inconsistent with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)directors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Voting Agreement (Engility Holdings, Inc.), Voting Agreement (Science Applications International Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after Prior to the date hereofTermination Date, the Company shallStockholder shall not, and [shall cause its Subsidiaries not to,]7 and shall use its reasonable best efforts to cause its and their Representatives not to, directly or indirectly, solicit, initiate, enter into, or continue discussions, negotiations, or transactions with, or encourage or respond to any inquiries or proposals by, or provide any information to any Person relating to, or enter into or consummate any transaction relating to, any Company Competing Transaction. In addition, the Stockholder will[, and will cause its Subsidiaries]8 and use reasonable best efforts to cause its and their Representatives to, (x) promptly cease any and cause to be terminated any all existing discussions or negotiations with any Third Party that may be ongoing Person conducted heretofore with respect to any Acquisition Proposal Company Competing Transaction. The Stockholder will promptly (and in any event within two (2) Business Days) notify BRPA if the Stockholder [or any of its Subsidiaries,]9 or, to the Stockholder’s knowledge, any of the Stockholder’s Representatives receives any inquiry, proposal, offer or submission with respect to a Company Competing Transaction (including the identity of the Person making such inquiry or submitting such proposal, offer that would reasonably be expected to lead to an Acquisition Proposalor submission), after the execution and delivery of this Agreement, and will provide BRPA with a copy of such inquiry, proposal, offer or submission. Notwithstanding anything in this Agreement to the contrary, (yi) request any such Third Party to promptly return or destroy all confidential information concerning the Stockholder shall not be responsible for the actions of the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, or the Company shall notBoard (or any committee thereof), and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf any Subsidiary of the Company, or any officers, directors (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3their capacity as such), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose employees and professional advisors of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (the “Company Related Parties”), including with respect to any action set forth in of the foregoing clauses (imatters contemplated by this Section 5(a), (ii) the Stockholder makes no representations or warranties with respect to the actions of any of the Company Related Parties, (iii) any breach by the Company of its obligations under Section 4.4(b) of the Merger Agreement shall not be considered a breach of this Section 5(a) (it being understood for the avoidance of doubt that the Stockholder shall remain responsible for any breach by it[, its Subsidiaries]10 or its Representatives (other than any such [Subsidiary or]11 Representative that is a Company Related Party) of this Section 5(a), ) and (iv) or (v) of this sentence (to the extent related the Company complies with its obligations under Section 4.4 of the Merger Agreement and participates in discussions or negotiations with a Person regarding an Acquisition Proposal, the Stockholder and/or any of its [Subsidiaries or]12 Representatives may engage in discussions or negotiations with such Person to the foregoing clauses (i) or (ii) extent that the Company can act under Section 4.4 of this sentence), a “Change of Board Recommendation”)the Merger Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (BRAC Lending Group LLC), Agreement and Plan of Merger (Big Rock Partners Sponsor, LLC)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from Until the earlier of the Effective Time and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the valid termination of this Agreement in accordance with Article 7pursuant to Section 8.01, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) solicit, initiate, solicit, knowingly facilitate or intentionally knowingly encourage the making submission or announcement of any offer inquiries, proposals or submission offers that constitutes constitute or would reasonably be expected to lead to an Acquisition any Takeover Proposal; , (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available provide any non-public information regarding concerning the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) or group in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Takeover Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose engage in any discussions or negotiations with respect to approve or recommend, any Acquisition Takeover Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve approve, support, adopt, endorse or cause the Company to enter into recommend any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”)Takeover Proposal, (iv) fail take any action to include make the Company Board Recommendation provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Acquiror and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or knowingly assist or participate in the Proxy Statement any such inquiries, proposals, offers, discussions or negotiations, or (vvi) resolve or agree to do any of the foregoing foregoing. The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or any action set forth of its Subsidiaries or any of its and their respective businesses, operations or affairs heretofore furnished by the Company or its Subsidiaries or any of their respective Representatives to such Person or group or any of such Person’s or group’s Representatives in accordance with the terms of such confidentiality agreement. None of the Company or its Subsidiaries shall enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from providing to Acquiror the information required to be provided to Acquiror pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event inform a Person or group that has made or, to the Knowledge of the Company, is considering making, a Takeover Proposal of the provisions of this Section 6.02. The Company and Acquiror hereby agree that all standstill or similar provisions in the foregoing clauses (i)Confidentiality Agreement shall, (ii), (iv) or (v) as of the date of this sentence (Agreement, terminate and be of no further force and effect solely to the extent related necessary to allow Acquiror to effect the foregoing clauses (i) transactions contemplated or (ii) permitted by this Agreement; provided that no provision of the Confidentiality Agreement, including any and all standstill or similar provisions, shall be deemed to limit the ability of Acquiror or any of its Affiliates to take any action contemplated this sentence), a “Change of Board Recommendation”)Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Move Inc), Agreement and Plan of Merger (News Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shallMiami shall immediately cease, and shall cause its Subsidiaries and Representatives toto immediately cease, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party Person that may be ongoing with respect to a Competing Proposal, or any Acquisition proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier of the Effective Time or the date of termination of this Agreement in accordance with Section 9, Miami shall not, and shall cause its respective Subsidiaries and Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated) any Competing Proposal or any proposal, inquiry or offer that proposal which would reasonably be expected to lead to an Acquisition a Competing Proposal, or (ii) engage in any discussions or negotiations regarding any Table of Contents Competing Proposal; provided, however, that (A) Miami may ascertain facts from the Person making an unsolicited Competing Proposal for the sole purpose of the Miami Board informing itself about the terms of such Competing Proposal and the Person that made it and (B) prior to obtaining the Miami Shareholder Approval and following the receipt of a bona fide written Competing Proposal made after the date hereof that the Miami Board determines in good faith (after receiving advice of its financial advisor and of its outside legal counsel) is or could reasonably be expected to lead to a Superior Proposal and that was not, directly or indirectly, solicited, initiated or encouraged in violation of this Section 7.10, Miami may, in response to such Competing Proposal and subject to compliance with Section 7.10(c), (x) furnish information with respect to Miami to the Person making such Competing Proposal pursuant to an Acceptable Confidentiality Agreement and (y) request engage in discussions or negotiations with such Person regarding such Competing Proposal; provided, that Miami may only take the actions described in the foregoing clauses (x) and (y) if it has provided Houston and Seattle with notice of its intent to take such action at least one (1) Business Day prior to taking the first of any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiariesactions. Except as expressly permitted by this Section 5.37.10, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company Miami shall not, and shall cause its respective Subsidiaries and Representatives not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7until the earlier of the Effective Time or the date, neither the Company Board nor any committee thereof shall if any, on which this Agreement is terminated pursuant to Section 9, directly or indirectly (i1) approve approve, endorse, recommend or recommendenter into, or publicly propose to approve approve, endorse, recommend or recommendenter into, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreementletter of intent, memorandum of understanding, agreement in principle, investment acquisition agreement, letter of intent merger agreement or other similar agreement relating (other than an Acceptable Confidentiality Agreement) with respect to any Acquisition Competing Proposal; (2) take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by a Competing Proposal; (3) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill or similar agreement entered into by the applicable party in respect of or in contemplation of a Competing Proposal (other than to the extent (I) the Miami Board determines in each casegood faith after consultation with its outside legal counsel, an “Alternative Acquisition that failure to take any of such actions under clause (3) would reasonably be expected to be inconsistent with the duties that the directors owe to Miami in their capacity as directors of Miami under applicable Law and (II) Miami releases Houston of any comparable standstill or similar obligations under the Confidentiality Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement ; or (v4) resolve or agree propose to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Hewlett Packard Enterprise Co)
No Solicitation. (aSubject to Section 6(a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shallShareholder shall immediately cease, and shall cause the Liberty Controlled Affiliates and its Subsidiaries and their respective Representatives toacting at the direction of Shareholder or such Liberty Controlled Affiliates to immediately cease, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party third-party that may be ongoing with respect to a Competing Proposal (for purposes of this Agreement, excluding any Acquisition Transfer permitted by Section 1(b) above), or any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly any confidential information that has been provided since January 2015 in any such discussions or negotiations. From the date hereof until the earlier of the Effective Time or the date of termination of this Agreement in accordance with its terms, Shareholder shall not, and shall cause the Liberty Controlled Affiliates and its and their respective Representatives acting at the direction of Shareholder or such Liberty Controlled Affiliates not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated) any Competing Proposal or any proposal, inquiry or offer that proposal which would reasonably be expected to lead to an Acquisition a Competing Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing regarding any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Competing Proposal or any proposal(iii) approve, inquiry endorse, recommend or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommendinto, or publicly propose to approve approve, endorse, recommend or recommendenter into, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreementletter of intent, memorandum of understanding, agreement in principle, investment acquisition agreement, letter of intent merger agreement or other similar definitive agreement with respect to any Competing Proposal. Shareholder shall promptly, and in any event no later than 24 hours, after it receives (x) any Competing Proposal or indication by any Person that it is considering making a Competing Proposal, (y) any request for non-public information relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation or its Subsidiaries other than requests for information in the Proxy Statement ordinary course of business consistent with past practice and unrelated to a Competing Proposal or (vz) resolve any inquiry or agree to do request for discussions or negotiations regarding any Competing Proposal, notify the Company orally and in writing of any of the foregoing occurrences, the identity of the Person making such request, inquiry or Competing Proposal and a copy of such request, inquiry or Competing Proposal (any action set forth in the foregoing clauses (ior where no such copy is available, a reasonably detailed description of such request, inquiry or Competing Proposal), (iiincluding any modifications thereto. For the avoidance of doubt, notwithstanding anything to the contrary in this Section 1(c), (ivthis Section 1(c) shall not prohibit any discussions, negotiations, or (vTransfers related to any permitted Transfers pursuant to Section 1(b), and any Transfer permitted under Section 1(b) will not constitute a breach of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”Section 1(c).
Appears in 2 contracts
Samples: Voting and Support Agreement (Interval Leisure Group, Inc.), Voting and Support Agreement (Liberty Interactive Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the The Company shall, and shall --------------- direct and use all reasonable efforts to cause its Subsidiaries officers, directors, employees and Representatives agents (including accountants, counsel, financial advisors and other representatives) to, (x) promptly immediately cease and cause to be terminated any discussions or negotiations with any Third Party parties that may be ongoing with respect to any Acquisition Proposal (as defined below in this Section 6.05(a)). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of, or any proposalagent (including accountants, inquiry counsel, financial advisors and other representatives) of, the Company or offer any of its Subsidiaries to, directly or indirectly, (i) solicit, facilitate or initiate, or knowingly encourage the submission of, any Acquisition Proposal (including, without limitation, the taking of any action which would make Section 203 of the Delaware Law inapplicable to the Acquisition Proposal) or (ii) participate in any discussions or negotiations regarding, or furnish or disclose to any person or legal entity (other than Parent or Purchaser) any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that would constitutes, or may reasonably be expected to lead to, an Acquisition Proposal; provided, however, that if, prior to the acceptance for -------- ------- payment of Shares pursuant to the Offer, the Board determines in good faith that it is necessary to do so in accordance with its fiduciary duties to the Company's stockholders under applicable law as advised by experienced, independent counsel (which counsel may be Shearman & Sterling), the Company may, in response to an unsolicited Acquisition Proposal, and subject to compliance with Section 6.05(c), (yx) request any such Third Party furnish or disclose information with respect to promptly return or destroy all confidential information concerning the Company and its SubsidiariesSubsidiaries to any third party pursuant to a customary confidentiality agreement on terms no less favorable to the Company nor more favorable to such third party than those contained in the Confidentiality Agreement and (y) participate in negotiations regarding such Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination For purposes of this Agreement in accordance with Article 7Agreement, "Acquisition Proposal" means any bona -------------------- fide inquiry, proposal or offer from any third party relating to any direct or indirect acquisition or purchase of all or a substantial part of the assets of the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf or of over 20% of the voting securities of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any tender offer or submission exchange offer that constitutes if consummated would result in any person beneficially owning 20% or would more of the voting securities of the Company, any merger, consolidation, business combination, sale of substantially all the assets, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than the Transactions, or any other transaction the consummation of which could reasonably be expected to lead to an Acquisition Proposal; (B) engage in impede, interfere with, prevent or knowingly facilitate any discussions materially delay the Offer or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company Merger or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would which could reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse dilute materially the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse benefits to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (H2o Acquisition Co), Agreement and Plan of Merger (Nalco Chemical Co)
No Solicitation. (a) Except as expressly permitted by this Section 5.36.03, from and after during the date hereofPre-Closing Period, the Company shallagrees that it shall not and shall cause each Company Subsidiary and any of the officers, directors or employees of it or any Company Subsidiary not to, and shall cause its Subsidiaries and instruct the other Representatives of the Company not to, directly or indirectly, (xi) promptly cease and cause to be terminated solicit, initiate, knowingly facilitate or knowingly encourage any discussions inquiries, proposals or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer offers that would be reasonably be expected to lead to an Acquisition Proposal, and (yii) request engage in, continue or otherwise participate in any such Third Party discussions or negotiations regarding, or furnish to promptly return any person any non-public information in connection with, any inquiries, proposals or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3offers that constitute, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to to, an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party Proposal except to notify such person of the existence of the provisions contained in this Section 5.3), except that, 6.03(a) and to clarify the Company may ascertain facts from terms of any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; Proposal, (Ciii) otherwise knowingly facilitate or knowingly encourage any effort or attempt to make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle , or any Contract concerning any Acquisition Proposal inquiries, proposals or any proposal, inquiry or offer offers that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (Eiv) reimburse execute or agree enter into any Acquisition Agreement; provided that, notwithstanding the foregoing, the Company may grant a waiver, amendment or release under any confidentiality or standstill agreement existing as of the date of this Agreement, solely to reimburse the expenses extent necessary to allow a confidential Acquisition Proposal to be made to the Company or the Company Board (or any committee thereof) so long as (A) the Company Board has determined in good faith (after consultation with outside legal counsel) that the failure to grant such waiver, amendment or release would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (B) the Company promptly (and in any event within twenty-four (24) hours) following the determination of the Company Board as required by the foregoing subclause (A) of this Section 6.03(a) notifies Parent of any other Person such waiver, amendment or release; provided, further, that, prior to the receipt of the Company Stockholder Approval, nothing contained in this Section 6.03 shall prevent the Company or the Company Board (other than the Company’s Representatives) or any committee thereof), whether directly or indirectly through any Representative, from furnishing information to, or engaging in connection with an negotiations or discussions with, any person that has made a bona fide Acquisition Proposal, which Acquisition Proposal did not result from a material breach of this Section 6.03, if, and only if, prior to taking such action referred to in clauses (ii) and (iii) of this Section 6.03(a) (except that the Company or its Representatives may notify any inquiryperson of the existence of this Section 6.03(a) and may clarify the terms of any such Acquisition Proposal), discussion(1) the Company Board (x) determines in good faith (after consultation with its advisors) that such Acquisition Proposal is, offer or request that would reasonably be expected to lead to, a Superior Proposal and (y) determines in good faith (after consultation with its outside legal counsel) that its failure to an Acquisition Proposal. Except as expressly permitted by this Section 5.3take such actions would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither (2) the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse provides written notice to Parent or Merger Subof the determination referenced in subclause (1) promptly (and in any event within twenty-four (24) hours of such determination), and (3) the Company Board Recommendation, receives or has received from such person an executed Acceptable Confidentiality Agreement. The Company shall deliver to Parent a copy of any executed Acceptable Confidentiality Agreement promptly (iiiand in any event within twenty-four (24) approve or cause hours) following its execution. The Company shall provide to Parent any non-public information concerning the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (Company Subsidiaries provided by the Company or any action set forth in Company Subsidiary to any person entering into an Acceptable Confidentiality Agreement pursuant to this Section 6.03(a) that has not been previously provided to Parent prior to or substantially concurrently with the foregoing clauses (i), (ii), (iv) or (v) of this sentence (time it is provided to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)such person.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Boston Scientific Corp), Agreement and Plan of Merger (Axonics, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shallXxxxxx agrees that it will not, and shall will cause its Subsidiaries and its Subsidiaries’ officers, directors, agents, advisors, representatives, investment bankers and affiliates (“Representatives”) not to, initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to, or engage or participate 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 Xxxxxx receives an unsolicited bona fide Acquisition Proposal and the Board of Directors of Xxxxxx concludes in good faith that such Acquisition Proposal constitutes, or is reasonably likely to result in, a Superior Proposal, Xxxxxx 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 Xxxxxx concludes in good faith (xand based on the advice of outside counsel) promptly 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 or substantive discussions, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to Xxxxxx than the Confidentiality Agreement. Xxxxxx will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing persons other than M&T with respect to any Acquisition Proposal and will, subject to applicable law, (x) enforce any confidentiality or similar agreement relating to an Acquisition Proposal and (y) promptly request and confirm the return or destruction of any confidential information provided to any person (other than M&T and its Affiliates) pursuant to any such confidentiality or similar agreement. Xxxxxx will promptly (and in any event within 24 hours) advise M&T of any inquiries, proposals or offers with respect to an Acquisition Proposal or any proposal, request for nonpublic information or inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party material terms thereof (including the identity of the person making it; (C) make available such Acquisition Proposal, and, if applicable, copies of any non-public information regarding the Company written requests, proposals or its Subsidiaries to any Person (other than Parentoffers, including proposed contracts), and Merger Sub will keep M&T promptly apprised of any related developments, discussions and their respective Representatives acting in their capacities as such) in connection with negotiations (including the terms and conditions of any such request, inquiry or in response to an Acquisition Proposal or any proposal, inquiry material changes or offer developments in the status or terms thereof) on a current basis. Xxxxxx agrees that would reasonably be expected it shall simultaneously provide to lead to an Acquisition Proposal; (D) enter into M&T any letter of intent confidential or agreement in principle nonpublic information concerning Xxxxxx or any Contract concerning of its Subsidiaries that may be provided to any other person in connection with any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected which has not previously been provided to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).M&T.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (M&t Bank Corp), Agreement and Plan of Merger (Hudson City Bancorp Inc)
No Solicitation. During the Term, each Stockholder will not, --------------- nor shall it permit or authorize any of its officers, directors, employees, agents or representatives (a) Except as expressly permitted by this Section 5.3, from and after the date hereofcollectively, the Company shall, and shall cause its Subsidiaries and Representatives "Representatives") to, (xi) promptly cease and cause to be terminated any discussions solicit --------------- or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicitor encourage, knowingly facilitate directly or intentionally encourage the making of indirectly, any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information inquiries regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommendsubmission of, any Acquisition Proposal, (ii) withdrawparticipate in any discussions or negotiations regarding, change or qualifyfurnish to any Person any information or date with respect to, in a manner adverse or take any other action to Parent knowingly facilitate the making of any proposal that constitutes, or Merger Submay reasonably be expected to lead to, the Company Board Recommendation, any Acquisition Proposal or (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating with respect to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve approve or agree or resolve to do approve any Acquisition Proposal. Upon execution of this Agreement, each Stockholder will, and it will cause its Representatives to, immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing foregoing. Each Stockholder will promptly (and in any event, within 24 hours) advise the Company orally and in writing of any request for information or the submission or receipt of any Acquisition Proposal, or any inquiry with respect to or which could lead to any Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal or inquiry and the identity of the person making any such request, Acquisition Proposal or inquiry and such Stockholder's response or responses thereto. This Section 1.6 relates only to action set forth taken or omitted by any Stockholder in his, her or its capacity as such, and does not restrict or require action taken or omitted by such Stockholder or any person affiliated with such Stockholder in his or her capacity, if any, as an officer or director of Xxxxx so long as any such action of such Stockholder or any person affiliated with such Stockholder in his or her capacity as an officer or director of Xxxxx is not in breach of the foregoing clauses (i), (ii), (iv) or (v) terms and provisions of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Merger Agreement.
Appears in 2 contracts
Samples: Voting Agreement (Manhattan Acquisition Corp), Voting Agreement (Manhattan Acquisition Corp)
No Solicitation. (a) Except as expressly permitted by Subject to this Section 5.36.2(a), from and after the date hereofof this Agreement to the earlier of the Effective Time or the date on which this Agreement is terminated pursuant to Section 9.1, the Company shall not, nor shall it permit any of its controlled Affiliates to, nor shall it authorize or permit any of its or its controlled Affiliates’ directors, officers, employees, investment bankers, attorneys, accountants or other advisors or representatives (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate, propose or knowingly encourage, or take any other action to knowingly facilitate, any Takeover Proposal or any inquiries or offers or the making of any proposal or any other efforts or attempt that could reasonably be expected to lead to a Takeover Proposal or (ii) enter into, continue or otherwise knowingly participate in any communications or negotiations regarding, or furnish to any Person any information with respect to, or otherwise knowingly cooperate in any way with any Person with respect to, any Takeover Proposal or any inquiries or offers or the making of any proposal or any other efforts or attempt that could reasonably be expected to lead to a Takeover Proposal. The Company shall, and shall cause its Subsidiaries and direct its Representatives to, (x) promptly immediately cease and cause to be terminated any discussions or all existing communications and negotiations with any Third Party that may be ongoing Person conducted heretofore with respect to any Acquisition Takeover Proposal and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding anything in this Agreement to the contrary, if, at any proposaltime prior to the Offer Closing, inquiry the Company, in response to a bona fide written Takeover Proposal received after the date hereof and provided, that the Board of Directors of the Company determines in good faith (after consultation with its outside legal counsel and financial advisor) that (A) such Takeover Proposal constitutes or offer that would could reasonably be expected to lead to an Acquisition Proposala Superior Proposal and (B) failure to respond to such Takeover Proposal would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, and which Takeover Proposal did not result from a breach of this Section 6.2(a), may, and may permit and authorize its Affiliates and its and its Affiliates’ Representatives to, in each case subject to compliance with the provisions of this Agreement, (yI) request any such Third Party furnish information with respect to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from Subsidiaries to the Person making such Takeover Proposal (and after its Representatives and financing sources) pursuant to a confidentiality agreement which contains terms with respect to the date hereof until the Acceptance Time, or, if earlier, the termination maintenance of this Agreement in accordance with Article 7, confidentiality and restrictions on use of Company information that are no less favorable to the Company shall not, than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement need not contain a standstill provision) and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (AII) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage participate in or knowingly facilitate any discussions or negotiations with respect thereto the Person making such Takeover Proposal (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)and its Representatives) regarding such Takeover Proposal; provided, except that, that the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) shall concurrently provide or make available to Parent any non-public information regarding concerning the Company or its Subsidiaries provided to any Person (other than such third party which was not previously provided to Parent, and Merger Sub and their respective Representatives acting the Company shall not take any of the actions referred to in their capacities as suchthe foregoing clause (I) or (II) unless it shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. In addition, the Company shall notify Parent promptly (but in connection with no event later than forty-eight (48) hours) after receipt by the Company (or in response to an Acquisition any of its Representatives) of any Takeover Proposal or any proposal, inquiry or offer that would reasonably be expected request for information relating to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle the Company or any Contract concerning any Acquisition Proposal of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any proposal, inquiry or offer that would reasonably be expected of its Subsidiaries by any third party with respect to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition a Takeover Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the The Company Board nor any committee thereof shall (i) approve provide the identity of the third party making any such Takeover Proposal, indication or recommendrequest (to the extent disclosure of the identity of such third party is not otherwise prohibited by the Company’s confidentiality obligations to third parties in effect prior to the date hereof) and the terms and conditions of any such Takeover Proposal, indication or publicly propose to approve or recommend, any Acquisition Proposalrequest, (ii) withdrawkeep Parent reasonably informed, change on a reasonably prompt and timely basis, of the status and details of any such Takeover Proposal, indication or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, request and (iii) approve or cause the Company to enter into promptly (but in no event later than forty-eight (48) hours after receipt) advise Parent of any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (changes to the extent related to the foregoing clauses (i) material terms of such Takeover Proposal, indication or (ii) of this sentence), a “Change of Board Recommendation”)request.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Shire PLC), Agreement and Plan of Merger (Viropharma Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from the Company and its Subsidiaries shall not, and the Company and its Subsidiaries shall use their best efforts to cause their respective representatives not to, initiate, solicit or knowingly encourage or 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 Company Acquisition Proposal; provided that in the event that, prior to the time that the Company’s shareholders’ approval of the Company Shareholder Matters (the “Company Shareholder Approval”) is obtained but not after, (1) the Company receives, after the date hereofexecution of this Agreement, an unsolicited bona fide Company Acquisition Proposal from a person other than Parent, and (2) the Company’s Board of Directors concludes in good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Company Superior Proposal or would reasonably be likely to result in a Company Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law, the Company shallmay, and shall cause may permit its Subsidiaries and Representatives its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Parent and the Company executed by the Company on October 2, 2013 and by Parent on October 3, 2013 (xthe “Confidentiality Agreement”) promptly and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person. The Company will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing persons other than Parent with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (iiB) withdrawnot terminate, change waive, amend, release or qualify, in modify any provision of any confidentiality or standstill agreement relating to any Company Acquisition Proposal to which it or any of its Affiliates or representatives is a manner adverse party and (C) use its commercially reasonable efforts to Parent enforce any confidentiality or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Company Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Center Bancorp Inc), Agreement and Plan of Merger (ConnectOne Bancorp, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3Neither SuperMedia nor Dex (each, from a “No-Shop Party”, and after the date hereofwith respect to each other, the Company “Other Party”) shall, and each shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its respective Subsidiaries not to, and each shall instruct direct its Representatives and its Subsidiaries’ officers, directors, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other retained representative) not to, directly or indirectly (i) solicit, initiate, encourage or facilitate, directly or indirectly (including by way of furnishing information), or take any other action designed to facilitate, any inquiries or proposals regarding any merger (other than the Mergers), share exchange, consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer), restructuring, recapitalization or similar transactions involving such No-Shop Party or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals being referred to herein as an “Acquisition Proposal”), (ii) participate in any discussions or negotiations regarding an Alternative Transaction, (iii) except as contemplated by Section 6.13, take any action to exempt any Person from the restrictions contained in any takeover or similar Law or otherwise cause such restrictions not to apply or (iv) enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement or other agreement regarding any Alternative Transaction. Notwithstanding the foregoing, the Board of Directors of a No-Shop Party shall be permitted, prior to the meeting of stockholders of such No-Shop Party to be held pursuant to Section 6.2, and subject to compliance with the other terms of this Section 6.12 and to first entering into a confidentiality agreement with the Person proposing such Acquisition Proposal on behalf of terms substantially similar to, and no less favorable to such No-Shop Party than, those contained in the CompanyConfidentiality Agreement, to furnish information concerning such No-Shop Party and its Subsidiaries to the Person making such Acquisition Proposal and to consider and participate in discussions and negotiations with respect to such Acquisition Proposal received by such No-Shop Party, if and only to the extent that (A) initiatesuch Acquisition Proposal is an unsolicited, solicitbona fide written Acquisition Proposal, knowingly facilitate or intentionally encourage (B) such Acquisition Proposal did not result from a breach by such No-Shop Party of this Section 6.12, and (C) the making Board of any offer or submission Directors of such No-Shop Party reasonably determines in good faith (after consultation with such No-Shop Party’s outside legal counsel and independent financial advisors) that (x) such Acquisition Proposal constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition a Superior Proposal and the Third (y) failure to do so would be inconsistent with its duties under applicable Laws. Such No-Shop Party making it; (C) shall promptly provide or make available to the Other Party and its representatives any non-public information regarding the Company provided or its Subsidiaries made available to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any such other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal that was not previously provided or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (made available to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Other Party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Supermedia Inc.), Agreement and Plan of Merger (DEX ONE Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from the Company and its Subsidiaries shall not, and the Company and its Subsidiaries shall use their best efforts to cause their respective representatives not to, initiate, solicit or knowingly encourage or 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 that, prior to the time that the Company’s shareholders’ approval of the Merger (the “Company Shareholder Approval”) is obtained but not after, (1) the Company receives, after the date hereofexecution of this Agreement, an unsolicited bona fide Acquisition Proposal from a person other than Parent, and (2) the Company’s Board of Directors concludes in good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be inconsistent with its fiduciary duties to the Company’s shareholders under applicable Law, the Company shallmay, and shall cause may permit its Subsidiaries and Representatives its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Parent and the Company dated December 27, 2012 (xthe “Confidentiality Agreement”) promptly and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Parent or shall be provided to Parent prior to or concurrently with the time it is provided to such person. The Company will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing persons other than Parent with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in not terminate, waive, amend, release or knowingly facilitate modify any discussions provision of any confidentiality or negotiations with respect thereto (other than informing standstill agreement relating to any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose to which it or any of the Company Board informing itself about such Acquisition Proposal its Affiliates or representatives is a party and the Third Party making it; (C) make available use its commercially reasonable efforts to enforce any non-public information regarding the Company confidentiality or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Somerset Hills Bancorp), Agreement and Plan of Merger (Lakeland Bancorp Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the The Company shall, and shall cause its Subsidiaries to and Representatives toshall request that its Representatives, immediately cease (xi) promptly cease and cause to be terminated any communications, discussions or negotiations with any Third Party Person that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an a Company Acquisition Proposal, (ii) furnishing to any Person (other than Parent, Infiniti, Holdco, Merger Sub, their respective Representatives and the Company’s Representatives) any information with respect to a Company Acquisition Proposal and (yiii) cooperating with, assisting in, participating in, knowingly facilitating or encouraging a Company Acquisition Proposal and, if applicable, shall request to have returned to the Company or destroyed any confidential information that has been provided to any Person during any such Third Party communications, discussions or negotiations occurring in the six (6) months prior to promptly return or destroy all confidential information concerning the Company and its Subsidiariesdate hereof. Except as expressly permitted by this Section 5.3, from From and after the date hereof until the Acceptance Time, or, if earlier, earlier to occur of the Effective Time or the date of termination of this Agreement in accordance with Article 79, the Company shall not, nor shall it permit any of its Subsidiaries or authorize or knowingly permit any of its Representatives to (and shall use reasonable best efforts to cause its Subsidiaries such Persons not to), and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (A) initiate, solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated) or knowingly facilitate any inquiry or intentionally encourage the making or submission of any inquiry, proposal, indication of interest or offer or submission that constitutes which constitutes, or would reasonably be expected to lead to an to, a Company Acquisition Proposal; , (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this subject to Section 5.35.02(b), except thatapprove, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, recommend or publicly propose to approve or recommend, any a Company Acquisition Proposal, (iiC) withdrawsubject to Section 5.02(b), change or qualifyapprove, in a manner adverse recommend, publicly propose to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to recommend or execute or enter into any merger agreement, acquisition agreementletter of intent, memorandum of understanding, merger agreement in principle, investment or other agreement, letter of intent arrangement or other similar agreement understanding, in each case relating to any a Company Acquisition Proposal (in other than an Acceptable Company Confidentiality Agreement) or a Company Superior Proposal (each case, an “Alternative Company Acquisition Agreement”), (ivD) fail to include the enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Board Recommendation in the Proxy Statement Acquisition Proposal, or (vE) resolve or agree to do any of the foregoing foregoing; provided, however, if, prior to the receipt of the Company Shareholder Approval, following the receipt of a bona fide written Company Acquisition Proposal that the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Company Superior Proposal and that was not solicited in violation of this Section 5.02(a) and was made after the date hereof, the Company may, in response to such Company Acquisition Proposal and subject to compliance with Section 5.02(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (1) prior to furnishing, or causing to be furnished, any action set forth such nonpublic information relating to the Company to such Person, the Company enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Company Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 5.02 and (y) contains provisions that in the foregoing clauses aggregate are no less restrictive on such Person than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement (iprovided that such agreement does not need to contain any provision prohibiting (including any direct or indirect “standstill” or similar provisions that prohibit) the making of any Company Acquisition Proposal), and (ii)2) promptly (but in any event within 24 hours) following furnishing any such nonpublic information to such Person, (iv) or (v) of this sentence the Company furnishes such nonpublic information to Parent (to the extent related such nonpublic information has not been previously so furnished to the foregoing clauses (i) Parent or (ii) of this sentence), a “Change of Board Recommendation”its Representatives).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Id Systems Inc), Agreement and Plan of Merger (Pointer Telocation LTD)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from (i) The Company agrees that neither it nor any of the Subsidiaries nor any of the officers and after directors of it or any of the date hereof, the Company Subsidiaries shall, and that it shall cause its Subsidiaries and Representatives the Subsidiaries’ employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of the Subsidiaries) not to (and shall not authorize any of them to), directly or indirectly (A) solicit, initiate, encourage, facilitate or induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (xas hereinafter defined), (B) promptly cease and cause to be terminated participate in any discussions or negotiations regarding, or furnish to any person or entity any nonpublic 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 Acquisition Proposal (except as permitted pursuant to Section 4.2(c)), (C) engage in discussions with any Third Party that may be ongoing person or entity with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected (except as permitted pursuant to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company4.2(c)), (AD) initiateapprove, solicit, knowingly facilitate endorse or intentionally encourage recommend any Acquisition Proposal (except to the making of any offer or submission that constitutes or would reasonably be expected extent specifically permitted pursuant to lead to an Acquisition Proposal; (BSection 4.2(d) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this and Section 5.37.1(g)), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; or (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (DE) enter into any letter of intent or agreement in principle similar document or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understandingcontract, agreement in principle, investment agreement, letter of intent or other similar agreement commitment contemplating or otherwise relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail or transaction contemplated thereby with respect to include the Company Board Recommendation in the Proxy Statement itself or (v) resolve or agree to do any of the foregoing Subsidiaries (except as permitted pursuant to Section 4.2(d) and Section 7.1(g)). The Company and each of the Subsidiaries shall, and the Company shall cause its and each of the Subsidiaries’ officers, directors, employees, agents and representatives (including any action set forth in investment banker, attorney or accountant retained by it or any of the foregoing clauses (i)Subsidiaries) to, (ii)cease immediately any and all existing activities, (iv) discussions or (v) negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal. The Company shall ensure that its officers, directors and key employees and its investment bankers, attorneys and other representatives are aware of the provisions of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Section.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Occupational Health & Rehabilitation Inc), Agreement and Plan of Merger (Concentra Operating Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3The Company shall not, from and after the date hereofnor shall it authorize or permit any of its Subsidiaries or any of their respective Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage, or take any other action to knowingly facilitate, the making of any proposal that constitutes or is reasonably likely to lead to a Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any confidential information with respect to, any Takeover Proposal. The Company shall, and shall cause its Subsidiaries and direct its Representatives to, (x) promptly immediately cease and cause to be terminated any all then existing discussions or and negotiations with any Third Party that may be ongoing Person conducted theretofore with respect to any Acquisition Takeover Proposal, and shall request the prompt return or destruction of all confidential information previously furnished in connection therewith. Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any time prior to obtaining the Company Required Vote, in response to an unsolicited bona fide written Takeover Proposal, if the Board of Directors of the Company determines in good faith, (x) after consultation with its financial advisors and outside counsel, that such Takeover Proposal constitutes, or any proposal, inquiry or offer that would could reasonably be expected to lead to an Acquisition Proposalto, a Superior Proposal and (y) request any after consultation with its outside counsel, that the failure to take such Third Party action would be inconsistent with its fiduciary duties under applicable law, the Company may (and may authorize and permit its Subsidiaries, directors, officers, employees and Representatives to), subject to promptly return or destroy all confidential compliance with Section 4.2(c) (A) furnish information concerning with respect to the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after Subsidiaries to the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition such Takeover Proposal for (and its Representatives) pursuant to a customary confidentiality agreement containing confidentiality provisions substantially similar to those set forth in the purpose of the Company Board informing itself about Confidentiality Agreement, provided that all such Acquisition Proposal and the Third Party making it; (C) make available any material, non-public information regarding the Company has previously been provided or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse made available to Parent or Merger Subis provided to Parent prior to or substantially concurrently with the time it is provided to such Person, and (B) participate in discussions and negotiations with the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Person making such Takeover Proposal (in each case, an “Alternative Acquisition Agreement”), (ivand its Representatives) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)regarding such Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lyondell Chemical Co), Agreement and Plan of Merger (AI Chemical Investments LLC)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from Oritani and its Subsidiaries shall not, and Oritani and its Subsidiaries shall use their best efforts to cause their respective representatives not to initiate, solicit or knowingly encourage or 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 (as hereinafter defined); provided that in the event, prior to the time the approval of Oritani’s shareholders (“Oritani Shareholder Approval”) is obtained but not after, (1) Oritani receives, after the date hereofexecution of this Agreement, the Company shallan unsolicited bona fide Acquisition Proposal from a person other than Valley, and shall cause (2) the Oritani Board of Directors concludes in good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal (as hereinafter defined) or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be inconsistent with its fiduciary duties to Oritani’s shareholders under applicable law, Oritani may, and may permit its Subsidiaries and Representatives its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided, that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Valley and Oritani dated May 8, 2019 (xthe “Confidentiality Agreement”), and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Valley or shall be provided to Valley prior to or concurrently with the time it is provided to such person. Oritani will (A) promptly immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing persons other than Valley with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in not terminate, waive, amend, release or knowingly facilitate modify any discussions provision of any confidentiality or negotiations with respect thereto (other than informing standstill agreement relating to any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose to which it or any of the Company Board informing itself about such Acquisition Proposal its affiliates or representatives is a party and the Third Party making it; (C) make available use its commercially reasonable efforts to enforce any non-public information regarding the Company confidentiality or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Oritani Financial Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shallILG shall immediately cease, and shall cause its Subsidiaries and Representatives toto immediately cease, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party Person that may be ongoing with respect to a Competing Proposal, or any Acquisition proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier of the Effective Time or the date of termination of this Agreement in accordance with Article IX, ILG shall not, and shall cause its respective Subsidiaries and Representatives not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated) any Competing Proposal or any proposal, inquiry or offer that proposal which would reasonably be expected to lead to an Acquisition a Competing Proposal, or (ii) engage in any discussions or negotiations regarding any Competing Proposal; provided, however, that (x) ILG may ascertain facts from the Person making an unsolicited Competing Proposal for the sole purpose of the ILG Board informing itself about the terms of such Competing Proposal and the Person that made it and (y) request if, prior to obtaining the ILG Shareholder Approval and following the receipt of a bona fide written Competing Proposal made after the date hereof that the ILG Board determines in good faith (after receiving advice of its financial advisor and of its outside legal counsel) is or could reasonably be expected to lead to a Superior Proposal and that was not, directly or indirectly, solicited, initiated or encouraged in violation of this Section 7.09, the ILG Board determines in good faith, after consultation with outside legal counsel, that a failure to take action with respect to such Competing Proposal would be inconsistent with its fiduciary duties to ILG’s shareholders under applicable Law, ILG may, in response to such Competing Proposal and subject to compliance with Section 7.09(c), (A) furnish information with respect to ILG to the Person making such Competing Proposal pursuant to an Acceptable Confidentiality Agreement and (B) engage in discussions or negotiations with such Person regarding such Competing Proposal; provided, that ILG may only take the actions described in the foregoing clauses (A) and (B) if it has provided Starwood and Vistana with notice of its intent to take such action at least one (1) Business Day prior to taking the first of any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiariesactions. Except as expressly permitted by this Section 5.37.09, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company ILG shall not, and shall cause its respective Subsidiaries and Representatives not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7IX, neither the Company Board nor any committee thereof shall directly or indirectly (i1) approve approve, endorse, recommend or recommendenter into, or publicly propose to approve approve, endorse, recommend or recommendenter into, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreementletter of intent, memorandum of understanding, agreement in principle, investment acquisition agreement, letter merger agreement or similar definitive agreement (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal; (2) take any action to make the provisions of intent any takeover statute or other the ILG Rights Agreement inapplicable to any transactions contemplated by a Competing Proposal; or (3) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, the ILG Rights Agreement or any standstill, confidentiality or similar agreement relating to any Acquisition entered into by the applicable party in respect of or in contemplation of a Competing Proposal (other than to the extent the ILG Board determines in each casegood faith after consultation with its outside legal counsel, an “Alternative Acquisition Agreement”that failure to take any of such actions under clause (3) would be inconsistent with its fiduciary duties under applicable Law), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v4) resolve or agree propose to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Starwood Hotel & Resorts Worldwide, Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from Prior to the earlier of the Closing and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7Section 11.1 hereof, the Company shall notneither Parent, and shall cause its Subsidiaries not toSellers, and shall instruct its Representatives not to on behalf of the Company, nor any of their respective shareholders, members, directors, officers, employees, advisors, agents or other representatives (Acollectively, “Representatives”), directly or indirectly, through Affiliates or otherwise, shall (a) solicit, initiate, solicitor encourage (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries or proposals that constitute, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would could reasonably be expected to lead to, a proposal or offer of any kind that constitute, or could reasonably be expected to lead to, an Acquisition Proposal; , (Bb) engage in negotiations or knowingly facilitate discussions with any discussions person (or negotiations with respect thereto (group of persons) other than informing any Buyer or its Affiliates (a “Third Party of the existence of the provisions contained in this Section 5.3)Party”) concerning, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available or provide any non-public information regarding the Company or its Subsidiaries to any Person (other than Parentperson or entity relating to, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; , (Dc) enter into continue any letter of intent prior discussions or agreement in principle or negotiations with any Contract Third Party concerning any Acquisition Proposal or (d) accept, or enter into any proposalagreement concerning, inquiry or offer that would reasonably be expected to lead to an any Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); any Third Party or (E) reimburse or agree to reimburse the expenses of consummate any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from From and after the date hereof until the Acceptance Time, or, if earlier, earlier of the termination of this Agreement in accordance with Article 7or the Closing, neither Parent, Sellers and the Company Board nor any committee thereof shall will, and will cause their respective Affiliates to (i) approve use their reasonable best efforts to cause to be returned or recommend, destroyed promptly after the date hereof all confidential information provided or publicly propose made available to approve any Person other than Buyer and its Affiliates and its and their Representatives in connection with a potential transaction involving the Business or recommend, any Acquisition Proposalthe Company, (ii) withdraw, change or qualify, in a manner adverse terminate all access for such Persons to Parent or Merger Sub, the Company Board Recommendation, electronic dataroom accessible through XX Xxxxxxxxx Venue with respect to the Business and (iii) approve not amend, modify, waive or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do enforce any of the foregoing (terms or conditions included in any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (confidentiality agreements with respect to the extent related to Business or the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Company.
Appears in 2 contracts
Samples: Equity Interest Purchase Agreement (CAESARS ENTERTAINMENT Corp), Equity Interest Purchase Agreement (Penn National Gaming Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after Prior to the date hereofTermination Date, the Company shallStockholder shall not, and shall cause its Subsidiaries subsidiaries and its and its subsidiaries’ respective Representatives not to, directly or indirectly, (xi) promptly cease and cause to be terminated initiate, solicit or knowingly encourage or facilitate any discussions or negotiations with any Third Party that may be ongoing inquiries with respect to any Acquisition Proposal to, or any proposalthe making of, inquiry or offer that would could reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdrawengage in any negotiations or discussions with any Third Party concerning any Company Acquisition Proposal, change or qualifyprovide access to its properties, books and records or any confidential or nonpublic information or data to any Third Party relating to the Company, any of its subsidiaries, any of the Company Joint Ventures, any Company Project or the Stockholder, or have or participate in any discussions with any Third Party, in a manner adverse to Parent or Merger Sub, connection with any of the Company Board Recommendationforegoing, (iii) approve approve, authorize or cause the Company to enter into any merger agreementterm sheet, acquisition agreementletter of intent, commitment, memorandum of understanding, agreement in principle, investment acquisition agreement, letter of intent merger agreement or other similar agreement (whether written or oral, binding or nonbinding) in connection with or relating to any Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement). The Stockholder also agrees that, immediately following the execution of this Agreement, it shall (and shall use reasonable best efforts to cause each of its subsidiaries and its and their Representatives to) immediately (1) cease any solicitations, discussions or negotiations with any Third Party in connection with a Company Acquisition Proposal or any potential Company Acquisition Proposal and (2) terminate each caseThird Party’s access to any physical or electronic data rooms relating to any potential Company Acquisition Proposal. The Stockholder also agrees that following the execution of this Agreement it will promptly request each Third Party that has prior to the date hereof executed a confidentiality agreement that is currently in effect in connection with a Company Acquisition Proposal or potential Company Acquisition Proposal to return or destroy all confidential information furnished to such Third Party by or on behalf of it or any of its subsidiaries prior to the date hereof. The Stockholder shall promptly (and in any event within one Business Day after the Stockholder’s knowledge of any such event) notify Parent of the receipt of (A) any Company Acquisition Proposal after the execution of this Agreement, (B) any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to result in or lead to, a Company Acquisition Proposal, or (C) any discussions or negotiations sought to be initiated or continued with the Stockholder, the Company, any of its subsidiaries or its or their Representatives concerning a Company Acquisition Proposal, which notice shall include a summary of the material terms of, and the identity of the Third Party making, such Company Acquisition Proposal, inquiry, offer, proposal or request for information and an “Alternative unredacted copy of any Company Acquisition Agreement”Proposal, inquiry, offer, proposal or request for information (including any proposed transaction agreements (including any drafts thereof and all schedules and exhibits thereto) relating to any Company Acquisition Proposal) made in writing (including electronically) and a summary of terms and conditions of any Company Acquisition Proposal, inquiry, offer, proposal or request for information not made in writing. Notwithstanding anything in this Agreement to the contrary, (x) the Stockholder (in its capacity as such) shall not be responsible for the actions of the Company or its Board of Directors (or any Committee thereof), (iv) fail to include any Affiliate of the Company Board Recommendation (other than the Stockholder), or any officers, directors (in the Proxy Statement or (v) resolve or agree to do their capacity as such), employees and Representatives of any of the foregoing (the “Company Related Parties”), including with respect to any action set forth in of the foregoing clauses (imatters contemplated by this Section 5(a), (ii)y) the Stockholder (in its capacity as such) makes no representations or warranties with respect to the actions of any of the Company Related Parties, and (ivz) any breach by the Company of its obligations under Section 6.1(a) of the Merger Agreement shall not be considered a breach of this Section 5(a) (it being understood for the avoidance of doubt that the Stockholder shall remain responsible for any breach by it or its Representatives (vother than any such Representative that is a Company Related Party) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentenceSection 5(a), a “Change of Board Recommendation”).
Appears in 2 contracts
Samples: Support Agreement (Sunrun Inc.), Support Agreement (Vivint Solar, Inc.)
No Solicitation. Subject to Section 9, each of the TK Parties shall not and shall use its reasonable best efforts to cause its Affiliates and Representatives not to: (a) Except as expressly solicit, initiate, or knowingly facilitate any inquiries, proposal or offer or the making, submission, modification or amendment or announcement of any inquiry, proposal or offer which constitutes or would be reasonably expected to lead to a Partnership Competing Proposal; (b) participate in or engage in any negotiations or discussions (other than to state that it is not permitted by this Section 5.3to have discussions) regarding, from and after or furnish to any Person any nonpublic information relating to the date hereofPartnership in connection with, the Company shallany inquiry, and shall cause its Subsidiaries and Representatives toproposal or offer which constitutes or would be reasonably expected to lead to a Partnership Competing Proposal; (c) publicly support or recommend any Partnership Competing Proposal, (xd) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing except with respect to any Acquisition Partnership Competing Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning is the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination subject of this Agreement a Partnership Change of Recommendation made in accordance with Article 7Section 5.2(d) of the Merger Agreement, the Company shall not, and shall cause its Subsidiaries not fail to, following the request of Parent to do so, promptly publicly and shall instruct its Representatives not to on behalf of the Companywithout qualification recommend against any Partnership Competing Proposal, or (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (De) enter into any letter of intent or other document or agreement in principle relating to, or any Contract concerning agreement or commitment providing for, any Acquisition Proposal or Partnership Competing Proposal. Notwithstanding the foregoing, the TK Parties may (and may permit their Affiliates and their and their Affiliates’ Representatives to) participate in discussions and negotiations with any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Person making a Partnership Competing Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s its Representatives) in connection with an Acquisition respect to such Partnership Competing Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall if: (i) approve the Partnership or recommend, General Partner is engaging in discussions or publicly propose negotiations with such Person pursuant to approve or recommend, any Acquisition Proposal, Section 5.2(b) of the Merger Agreement and has not breached Section 5.2 of the Merger Agreement; and (ii) withdrawthe TK Parties’ negotiations and discussions are in conjunction with and ancillary to the Partnership’s or the General Partner’s discussions and negotiations. Each of TKC and TFL shall immediately cease, change and cause its directors, officers and employees to cease, and shall use its reasonable best efforts to cause its Representatives to immediately cease, any and all existing discussions or qualify, in a manner adverse to Parent negotiations with any parties (or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into provision of any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating nonpublic information to any Acquisition parties) conducted heretofore with respect to any Partnership Competing Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include or Partnership Inquiry existing on the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)date hereof.
Appears in 2 contracts
Samples: Voting and Support Agreement (Teekay Corp), Voting and Support Agreement (Teekay LNG Partners L.P.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the The Company shall, and shall cause its Subsidiaries and Representatives to, (xi) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct not authorize or permit its or their Representatives not to on behalf of the Companyto, directly or indirectly, (A) initiate, solicit, initiate or knowingly facilitate encourage, or intentionally encourage take any other action to knowingly facilitate, any Takeover Proposal or any inquiries or the making of any offer proposal that would reasonably be expected to result in or submission lead to a Takeover Proposal or (B) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person (or any Representative thereof) any information with respect to or in connection with, or otherwise knowingly cooperate with any person (or any Representative thereof) with respect to, any Takeover Proposal or any inquiries or proposals that would reasonably be expected to result in or lead to a Takeover Proposal, (ii) shall and shall cause its Subsidiaries and its and their respective Representatives to immediately cease and cause to be terminated all existing activities, discussions and negotiations with any person conducted heretofore with respect to any Takeover Proposal or any inquiries or proposals that would reasonably be expected to result in or lead to a Takeover Proposal and (iii) shall promptly, and in any event within two days following the date of this Agreement, request, and shall use its commercially reasonable efforts to cause, the prompt return or written acknowledgment of destruction of all confidential information previously furnished to any person within 24 months prior to the date of this Agreement for the purposes of evaluating a possible Takeover Proposal to the extent that the Company is entitled to have such documents returned or destroyed. Notwithstanding the foregoing, the Company and its Subsidiaries shall be permitted to release any person from or waive any standstill provision or similar provision with respect to any capital stock of the Company or any of its Subsidiaries in any agreement to which the Company or any of its Subsidiaries is a party solely to the extent that (x) such provision would otherwise prohibit the counterparty thereto from making a confidential Takeover Proposal directly to the Board of Directors of the Company in accordance with this Section 4.02 and (y) the Board of Directors of the Company determines in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law. Except to the extent otherwise permitted by the foregoing sentence, the Company shall, and shall cause its Subsidiaries to, enforce the standstill provisions of any such agreement. Notwithstanding anything in this Section 4.02 to the contrary, at any time prior to obtaining the Stockholder Approval, in response to a bona fide written unsolicited Takeover Proposal received after the execution of this Agreement which did not result from a material breach of this Section 4.02, (x) the Company and its Representatives may contact the person proposing such Takeover Proposal or the Representatives of such person solely to clarify the terms and conditions thereof and (y) if the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel and Citigroup or another financial advisor of nationally recognized reputation, that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, the Company may, and may permit and authorize its Subsidiaries and its Representatives and its Subsidiaries’ Representatives to, in each case subject to compliance with Section 4.02(c) and the other provisions of this Agreement, (1) furnish information with respect to 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 no less restrictive of such person than those contained in the Confidentiality Agreement (an Acquisition Proposal“Acceptable Confidentiality Agreement”); provided that all such information had been provided, or is concurrently provided, to Parent, and (B2) engage participate in or knowingly facilitate any discussions or negotiations with respect thereto with, and only with, the person making such Takeover Proposal (other than informing any Third Party and its Representatives) regarding such Takeover Proposal. Without limiting the generality of the existence foregoing, it is understood that any violation of the provisions contained restrictions set forth in this Section 5.3), except that, the Company may ascertain facts from 4.02(a) by any Person making an Acquisition Proposal for the purpose Subsidiary of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available or any non-public information regarding Representative of the Company or any of its Subsidiaries shall be deemed to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as suchbe a breach of this Section 4.02(a) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than by the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Northrop Grumman Corp /De/), Agreement and Plan of Merger (Orbital Atk, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from From and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated in accordance with Article 7, and except as otherwise permitted in this Agreement, the Company will not, and it will cause the Subsidiaries of the Company and its and their respective directors and officers, and the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its and its Subsidiaries’ financial advisors, investment bankers, legal counsel and other Representatives not to on behalf of the CompanyCompany not to: (i) solicit or initiate or knowingly assist, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any inquiry, proposal or offer or submission that constitutes or would be reasonably be expected to lead to an Acquisition Proposal; (B) a Competing Proposal or engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than solely in response to an inquiry not solicited in material breach of this Section 5.5 informing any Third Party the Person making such inquiry of the existence of the provisions contained in this Section 5.35.5); provided, except thathowever, that the Company and its Representatives may make inquiries of a Person making a Competing Proposal (and its Representatives) solely to the extent necessary to ascertain facts from any Person making an Acquisition regarding, and clarify the terms of such Competing Proposal solely for the purpose of the Company Board informing itself about the terms of the Competing Proposal, but not to negotiate or seek revisions to such Acquisition Proposal and the Third Party making itCompeting Proposal; (Cii) make available provide any non-public information regarding or provide access to the properties, personnel, books and records of the Company or its Subsidiaries any of Subsidiary of the Company to any Person or “group” (as defined under Section 13(d) of the Exchange Act) (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as suchor any designees of Parent or Merger Sub) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer under circumstances that would reasonably be expected to lead to an Acquisition a Competing Proposal, except as permitted by Section 5.5(c) below; (iii) approve, endorse or publicly recommend, or propose publicly to approve, endorse or recommend, any Competing Proposal; (Div) withdraw or change or qualify in a manner adverse to Parent, the Company Board Recommendation or fail to include in a manner adverse to Parent, the Company Board Recommendation in the Proxy Statement when disseminated to the Company’s shareholders; (v) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days after receipt of a written request by Parent following a Competing Proposal (or modification to the financial terms thereof or modification of any other material term thereof) becoming publicly known; provided that the Company and its Representatives shall have no obligation to reaffirm the Company Board Recommendation more than once with respect to any Competing Proposal (with modification to the financial terms thereof or any other material term thereof constituting a new Competing Proposal); (vi) if a tender offer or exchange offer that constitutes a Competing Proposal is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders within ten (10) Business Days after the commencement thereof (or any modification to the financial terms thereof or any other material terms thereof); (vii) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreementintent, memorandum of understanding, agreement in principle, investment merger agreement, letter of intent acquisition agreement or other similar agreement Contract or understanding relating to any Acquisition Competing Proposal (in each case, an “Alternative Acquisition Agreement”whether binding or nonbinding), (iv) fail to include the Company Board Recommendation in the Proxy Statement ; or (vviii) resolve or agree to do any of the foregoing (any action set forth act described in the foregoing clauses (i), (iiiii), (iv), (v), (vi) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentencevii), above, a “Company Change of Board Recommendation”). The Company agrees that neither it, nor its affiliates, will enter into any agreement with any Third Party subsequent to the date of this Agreement which would prohibit the Company or any of its affiliates from providing any information to Parent in accordance with, or otherwise complying with, this Section 5.5.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Maxlinear Inc), Agreement and Plan of Merger (Maxlinear Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3Each Principal Stockholder hereby acknowledges that he, from and after she or it is aware of the date hereof, covenants of the Company contained in Section 6.04 of the Merger Agreement and hereby agrees that he, she or it shall, and shall cause his, her or its Subsidiaries and Representatives representatives to, (x) after the Solicitation Period End Date, promptly cease and cause to be terminated any discussions or negotiations with any Third Party parties that may be ongoing as of such date with respect to an Acquisition Proposal. Each Principal Stockholder hereby further agrees that he, she or it shall not, nor shall he, she or it permit any Acquisition Proposal of his, her or its representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing non-public information or providing access to the Company's or such Principal Stockholder's properties, books, records or personnel, as applicable) any proposalinquiries regarding, inquiry or the making of any proposal or offer that would constitutes, or could reasonably be expected to lead to, an Acquisition Proposal or (ii) have any discussions or participate in any negotiations regarding an Acquisition Proposal, or execute or enter into any agreement, understanding or arrangement with respect to an Acquisition Proposal, and (y) request any such Third Party except, in each case, to promptly return or destroy all confidential information concerning the extent that the Company is permitted to engage in such solicitation, initiation, encouragement, discussions or negotiations pursuant to Section 6.04 of the Merger Agreement and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the except that (x) in connection with a termination of this the Merger Agreement in accordance with Article 7its terms, each Principal Stockholder shall be entitled to enter into a voting agreement with the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for and (y) nothing contained in this Section 3.3(a) shall prohibit any Principal Stockholder from responding to an unsolicited proposal or inquiry solely by advising the purpose Person making such proposal or inquiry of the terms of this Section 3.3(a); provided, that, to the extent that the Company informs such Principal Stockholder that the Board of Directors of the Company Board informing itself about such Acquisition Proposal and or the Third Party making it; (C) make available any non-public information regarding Transaction Committee has determined that the Company is entitled to engage in any such solicitation, initiation, encouragement, discussion or negotiation pursuant to Section 6.04 of the Merger Agreement, such Principal Stockholder may conclusively rely on such determination and shall not be held liable for breach under this Agreement if such determination is later determined to be incorrect or inconsistent with the terms of the Merger Agreement. Each Principal Stockholder shall advise Parent in writing of the receipt by such Principal Stockholder or any of his, her or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter representatives of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”case within 48 hours of receipt thereof), (iv) fail to include specifying the Company Board Recommendation material terms and conditions thereof. Each Principal Stockholder shall promptly notify Parent in the Proxy Statement or (v) resolve or agree to do writing of any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (modifications to the extent related financial or other material terms of such Acquisition Proposal not previously provided to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Parent.
Appears in 2 contracts
Samples: Voting Agreement (Alexander Marjorie), Voting Agreement (Alexander Marjorie)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the The Company shall, and shall cause each of its Subsidiaries and each of its and its Subsidiaries’ Representatives to, immediately (xi) promptly cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing Person (other than Parent and its Subsidiaries) conducted prior to the date of this agreement with respect to any Acquisition Takeover Proposal or any proposalinquiry, inquiry proposal or offer that would constitutes or could reasonably be expected to lead to an Acquisition a Takeover Proposal, and (yii) request terminate access by any such Third Party to promptly return or destroy all confidential information concerning the Company Person (other than Parent and its Subsidiaries. Except as expressly permitted by this Section 5.3) to any physical or electronic data room relating to any Takeover Proposal or any inquiry, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate proposal or intentionally encourage the making of any offer or submission that constitutes or would could reasonably be expected to lead to an Acquisition a Takeover Proposal; , and (Biii) engage in request that each such Person promptly return or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any destroy all non-public information regarding previously furnished to such Person or any of its Representatives. The Company shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which the Company or any of its Subsidiaries is a party relating to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Takeover Proposal or any proposal, inquiry that constitutes or offer that would could reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition a Takeover Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse and shall enforce the expenses provisions of any such agreement, except that the Company shall be permitted on a confidential basis to release or waive any standstill obligations solely to the extent necessary to permit the other Person (other than the Company’s Representatives) in connection with an Acquisition party thereto to submit a Takeover Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor on a confidential basis. The Company shall provide prompt (and in any committee thereof shall (ievent within 24 hours) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse written notice to Parent of each such release or Merger Subwaiver of any standstill obligations, including in such notice the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any identities of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)parties thereto and circumstances relating thereto.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Vmware, Inc.), Agreement and Plan of Merger (Carbon Black, Inc.)
No Solicitation. (a) Except as expressly permitted by Notwithstanding anything to the contrary contained in this Section 5.3Agreement, from during the period beginning immediately following the execution of this Agreement and after continuing until 11:59 p.m. (Dallas, Texas time) on the date hereofthirtieth (30th) day thereafter (the “Solicitation Period End Date”), the Company shallshall have the right to, and shall may cause its Subsidiaries and the Company’s and its Subsidiaries’ respective directors, officers, employees and Representatives to, (x) promptly cease and cause to be terminated any discussions directly or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Companyindirectly, (Ai) initiate, solicit, knowingly encourage or knowingly facilitate or intentionally encourage the making submission of any offer inquiries, proposals or submission offers that constitutes constitute or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdrawengage in any discussions or negotiations with, change or qualifyprovide any confidential information or data to, any person relating to a Company Acquisition Proposal, in a manner adverse each case pursuant to Parent one or Merger Sub, the Company Board Recommendationmore Acceptable Confidentiality Agreements, (iii) approve terminate, waive, amend or cause modify any provision of any Standstill Agreement or confidentiality agreement to which the Company is a party to enter into the extent necessary to allow the other party thereto to submit any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Company Acquisition Proposal (in each caseor to inquire, propose or make an “Alternative offer that may lead to a Company Acquisition Agreement”), Proposal or (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve propose or agree to do any of the foregoing foregoing. Parent agrees that neither it nor any of its affiliates shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to, participate in discussions with, any person (or group that includes any person) that prior to the execution of this Agreement directly or indirectly, whether through its affiliates or Representatives, (1) accessed the on-line data room hosted on behalf of the Company in connection with evaluating a potential acquisition of the Company, (2) participated in substantive negotiations with the Company or its Representatives regarding a Company Acquisition Proposal or (3) submitted a Company Acquisition Proposal to the Company or its Representatives, in each case within 180 days prior to the date of this Agreement (any action set forth such person, a “Prior Bidder”); provided, however, that nothing in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses shall prohibit or restrict Parent from making or conducting public communications or solicitations regarding (i) a Company Acquisition Proposal or (ii) the transactions contemplated by this Agreement in accordance with Section 5.8. The Company will substantially concurrently make available to Parent or its Representatives any non-public information concerning the Company and its Subsidiaries that is provided by the Company to any person or its Representatives pursuant to this Section 5.4(a) that was not previously provided or made available to Parent as promptly as reasonably practicable (but in any event within one (1) day) after providing (or causing to be provided) any such information pursuant to this Section 5.4(a) and shall not provide to any such person any non-public information of this sentence)or relating to Parent, a “Change Merger Subs or any of Board Recommendation”)their respective affiliates or Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Moneygram International Inc), Agreement and Plan of Merger (Moneygram International Inc)
No Solicitation. (a) Except as expressly permitted by Notwithstanding any provision in this Section 5.3, from and after Agreement to the date hereofcontrary, the Company shall(i) shall not, nor shall it authorize or permit any of its Subsidiaries to, nor shall it authorize or permit any director, officer or employee of the Company or any of its Subsidiaries to, and (ii) shall cause direct any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries not to and Representatives shall use its reasonable best efforts to cause any such investment banker, attorney, accountant or other advisor or representative not to, directly or indirectly (x) promptly cease and it shall direct and cause each applicable Subsidiary, if any, to be terminated direct each such director, officer, employee, investment banker, attorney, accountant or other advisor or representative of the Company or any discussions of its Subsidiaries not to), (i) solicit, initiate or negotiations with knowingly encourage, or take any Third Party that may be ongoing with respect other action to knowingly facilitate, any Acquisition Takeover Proposal or any proposal, inquiry inquiries or offer the making of any proposal that would could reasonably be expected to lead to an Acquisition a Takeover Proposal or (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person (or any representative thereof) any information with respect to any Takeover Proposal; provided, however, that at any time prior to obtaining the Stockholder Approval, in response to a bona fide written unsolicited 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 did not result from a breach of this Section 4.02, the Company may, and may permit and authorize its Subsidiaries and its representatives and its Subsidiaries’ representatives to, (yA) request any such Third Party furnish information with respect to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except Subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement which contains terms that are substantially similar to those contained in the Confidentiality Agreement, dated as expressly permitted by this Section 5.3of September 24, 2010, between Parent and the Company (as it may be amended from and after the date hereof until the Acceptance Time, or, if earliertime to time, the termination of this Agreement in accordance with Article 7“Confidentiality Agreement”), provided that all such material written information regarding the Company shall not, and shall cause its Subsidiaries not tohad been provided, or is substantially concurrently provided, to Parent and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage participate in or knowingly facilitate any discussions or negotiations with respect thereto the person making such Takeover Proposal (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about and its representatives) regarding such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Takeover Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)otherwise.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Caterpillar Inc), Agreement and Plan of Merger (Bucyrus International Inc)
No Solicitation. (a) Except as expressly permitted by Prior to the earlier of the Closing or the termination of this Section 5.3Agreement, from and after neither the date hereof, Xxxxxx Parties nor the Company NMD Parties shall, and neither the Xxxxxx Parties nor the NMD Parties shall permit its controlled Affiliates or (using Reasonable Best Efforts) its or their respective Representatives to, directly or indirectly, (a) discuss, encourage, negotiate, undertake, initiate, authorize, recommend, propose or enter into, any transaction involving any sale, lease, license, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of all or a portion of the IDRH Subject Interests or the Marlin GP Interests, whether by merger, consolidation, business combination, purchase or sale of equity interests or other securities, reorganization or recapitalization, loan, issuance of equity interests or other securities or any other transaction, except for the transactions contemplated by the Transaction Documents (a “Xxxxxx Acquisition Transaction”), (b) facilitate, encourage, solicit or initiate discussions, negotiations or submissions of proposals or offers in respect of a Xxxxxx Acquisition Transaction, (c) furnish or cause to be furnished, to any Person, any information concerning the IDRH Subject Interests or the Marlin GP Interests in connection with a Xxxxxx Acquisition Transaction or (d) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person to do or seek any of the foregoing. Upon the execution of this Agreement, each Xxxxxx Party and each NMD Party shall, and each Xxxxxx Party and each NMD Party shall cause its Subsidiaries Affiliates and (using Reasonable Best Efforts) its and their respective Representatives to, (x) promptly immediately cease and cause to be terminated any existing discussions or negotiations with any Third Party that may be ongoing Persons (other than Azure) conducted heretofore with respect to any Xxxxxx Acquisition Proposal Transaction. Notwithstanding the foregoing, this Section 8.9(a) shall in no way prohibit the board of directors or officers of Marlin GP (in its capacity as the general partner of Marlin GP) from taking any proposal, inquiry or offer that would reasonably be expected action required by its duties to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company Xxxxxx and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after partners under applicable Law or the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Xxxxxx Partnership Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 2 contracts
Samples: Transaction Agreement, Transaction Agreement (Marlin Midstream Partners, LP)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company The Stockholder shall not, and the Stockholder shall cause its Subsidiaries Affiliates (other than the Company) and its and their directors, officers and employees not to, and shall instruct direct and otherwise use its reasonable best efforts to cause its and their respective other Representatives not to on behalf of the Companyto, directly or indirectly (Ai) initiate, solicit, or knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in encourage, or knowingly facilitate the submission or making of, any discussions or negotiations with respect thereto Acquisition Proposal, (ii) other than informing any Third Party Parties of the existence of the provisions contained in this Section 5.3)3.03, except thatparticipate or engage in negotiations or discussions, the Company may ascertain facts from or furnish any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding concerning the Company or any of its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommendto, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement Third Party relating to any Acquisition Proposal or Acquisition Transaction, (in each caseiii) enter into any Contract or other agreement (binding or non-binding, an “Alternative preliminary or definitive) for any Acquisition Agreement”)Proposal or Acquisition Transaction, (iv) fail enter into any Contract or other agreement to include reimburse any Third Party for costs, expenses or other Liabilities incurred in connection with the Company Board Recommendation in making (or evaluating for the Proxy Statement purpose of making) a potential Acquisition Proposal or Acquisition Transaction or (v) resolve enter into any agreement that would prevent the Stockholder from complying with any provision of this Section 3.03. From and after the execution and delivery of this Agreement, the Stockholder shall, and shall cause its Affiliates and shall direct its and their respective Representatives (other than the Company but only to the extent expressly permitted by the Merger Agreement) to, immediately cease and cause to be terminated all discussions or agree negotiations with any Person existing on the date hereof with respect to do such Person making (or evaluating for the purpose of making) any Acquisition Proposal or Acquisition Transaction. The Stockholder shall ensure that its Representatives are aware of the foregoing (provisions of this Section 3.03, and it is agreed that any action violation of the restrictions applicable to Representatives set forth in this Section 3.03 by any Representative of the foregoing clauses (i), (ii), (iv) Stockholder or (v) any of its Affiliates shall constitute a breach of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Section 3.03.
Appears in 2 contracts
Samples: Support Agreement (Blue Buffalo Pet Products, Inc.), Support Agreement (General Mills Inc)
No Solicitation. (a) Except MBI agrees that, except as expressly permitted by this Section 5.36.7(b), from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by of this Section 5.3, from and after the date hereof Agreement until the Acceptance Time, Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7Section 8.1, the Company shall it will not, and shall will cause its Subsidiaries and its and its Subsidiaries’ officers, directors, and employees (the “MBI Individuals”) not to, and shall instruct will use its Representatives reasonable best efforts to cause MBI and its Subsidiaries’ agents, advisors, accountants, legal counsel, and financial advisors (the “MBI Representatives”) not to on behalf of the Companyto, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate inquiries or proposals with respect to, or engage in any discussions or negotiations concerning, or provide any confidential or nonpublic information or data concerning its and its Subsidiaries’ business, properties or assets (“MBI Confidential Information”) to, or have any discussions with, any Person relating to, any Acquisition Proposal. MBI will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Persons other than PHC with respect thereto (other than informing to any Third Party of the existence Acquisition Proposal and will, subject to applicable law, enforce and not waive any confidentiality or similar agreement relating to such an Acquisition Proposal. It is understood that any breach of the provisions contained in of this Section 5.3)6.7 by any MBI Representative shall constitute a breach by MBI. Promptly after the date hereof, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; MBI shall (CA) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting request in their capacities as such) writing that each person that has heretofore executed a confidentiality agreement in connection with or in response to its consideration of an Acquisition Proposal or any proposal, inquiry potential Acquisition Proposal promptly destroy or offer that would reasonably be expected return to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle MBI all nonpublic information heretofore furnished by MBI or any Contract concerning any Acquisition Proposal MBI Representatives to such person or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement of its representatives in accordance with Section 5.3(b)); the terms of such confidentiality agreement and (B) terminate access to any physical or (E) reimburse or agree electronic data rooms relating to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an a possible Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from such person and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)its representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Professional Holding Corp.), Agreement and Plan of Merger (Professional Holding Corp.)
No Solicitation. (a) Except as expressly permitted by this it may relate to any Excluded Party or Silver Party and subject to the terms of Section 5.35.02(c), from the No-Shop Period Start Date until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and after the date hereofEffective Time, the Company shall, and Titanium shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer Person and its Affiliates and Representatives that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiariesprohibited by this Section 5.02(b). Except as expressly permitted by this it may relate to any Excluded Party and subject to the terms of Section 5.35.02(c), from and after the date hereof No-Shop Period Start Date until the Acceptance Time, or, if earlier, earlier to occur of the valid termination of this Agreement in accordance with pursuant to Article 7VIII and the Effective Time, the Company shall Titanium Parties will not, and shall cause its Subsidiaries will instruct each of their respective Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) initiate, solicit, knowingly facilitate initiate or intentionally encourage propose the making of or submission of, or knowingly encourage or facilitate the making or submission of, any offer or submission proposal that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries furnish to any Person (other than Parentthe Silver Parties or any designees of the Silver Parties) any non-public information relating to Titanium or any of its Subsidiaries or afford to any Person (other than the Silver Parties or any designees of the Silver Parties) access to the business, and Merger Sub and their respective Representatives acting properties, assets, books, records or other non-public information, or to any personnel, of Titanium or any of its Subsidiaries, in their capacities as suchany such case with the intent to induce the making or submission of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal; (iii) participate in, knowingly facilitate or engage in connection discussions or negotiations with or in response any Person with respect to an Acquisition Proposal or any proposaloffer, proposal or inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than informing such Persons of the existence of the provisions contained in this Section 5.02(b) or contacting such Person or its Representatives solely to clarify the terms and conditions of any Acquisition Proposal); (iv) enter into any letter of intent, memorandum of understanding, agreement in principle, investment agreement, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction or that would reasonably be expected to lead to an Acquisition Proposal; other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract providing for an Acquisition Transaction an “Alternative Acquisition Agreement”) or (Ev) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Titanium Parties’ Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly From the No-Shop Period Start Date until the earlier to occur of the valid termination of this Agreement pursuant to Article VIII and the Effective Time, Titanium will be required to enforce, and will not be permitted by to waive, any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to Titanium or the Titanium Board (or the Titanium Special Committee), unless the Titanium Special Committee has determined in good faith, after consultation with its outside counsel, that failure to take such action (I) would prohibit the counterparty from making an unsolicited Acquisition Proposal to the Titanium Board or Titanium Special Committee in compliance with this Section 5.35.02 and (II) would be inconsistent with its fiduciary duties pursuant to Applicable Law. Notwithstanding anything herein to the contrary, including the occurrence of the No-Shop Period Start Date, from and after the date hereof until the Acceptance Time, or, if earlierNo-Shop Period Start Date, the termination of this Agreement Titanium Parties and their respective Representatives may continue to engage in accordance the activities described in Section 5.02(a) with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating respect to any Excluded Party (and its Representatives), including with respect to any amended or modified Acquisition Proposal (submitted by any Excluded Party following the No-Shop Period Start Date, and the restrictions in each case, an “Alternative Acquisition Agreement”), (ivthis Section 5.02(b) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)shall not apply with respect thereto.
Appears in 2 contracts
Samples: Joint Venture Operating Agreement (Taubman Centers Inc), Joint Venture Operating Agreement (Simon Property Group L P /De/)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof4.02, the Company shalland its Subsidiaries shall not, and the Company shall instruct and cause its and their respective directors, officers and legal or financial advisors not to, and shall cause its Subsidiaries and not authorize or permit any of their other Representatives to, directly or indirectly, (xi) promptly cease and cause solicit, initiate, knowingly encourage, or take any other action to be terminated knowingly facilitate any discussions inquiries regarding the making or negotiations with submission of any Third Party that may be ongoing with respect to any Acquisition Takeover Proposal or any proposal, inquiry proposal or offer that would reasonably be expected to lead to an Acquisition a Takeover Proposal, and (yii) request engage in, participate in or otherwise continue any such Third Party discussions or negotiations regarding, or furnish to promptly return or destroy all confidential any person any non-public information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not respect to, and shall instruct its Representatives not or take any other action to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of of, any proposal or offer or submission that constitutes constitutes, or would reasonably be expected to lead to, any Takeover Proposal or (iii) enter into or agree to an Acquisition enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Takeover Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (, other than informing any Third Party of the existence of the provisions contained in this Section 5.3Acceptable Confidentiality Agreement (an “Acquisition Agreement”). The Company and its Subsidiaries shall, except that, and the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or shall cause its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection to, immediately cease and cause to be terminated any discussions and negotiations with any person conducted heretofore with respect to any Takeover Proposal, or in response to an Acquisition Proposal or any proposal, inquiry proposal or offer that would reasonably be expected to lead to an Acquisition any Takeover Proposal; (D) enter into any letter . The Company will promptly inform the individuals and entities referred to in the preceding sentence of intent or the obligations undertaken in this Section 4.02. The Company will promptly request from each person that has executed a confidentiality agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition its consideration of making a Takeover Proposal within the past two years to return or destroy (as provided in the terms of such confidentiality agreement) all confidential information concerning the Company or any inquiry, discussion, offer or request that would reasonably be expected of its Subsidiaries and promptly terminate all physical and electronic data access previously granted to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)such person.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cyan Inc), Agreement and Plan of Merger (Ciena Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the The Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly immediately cease and cause to be terminated any discussions or negotiations with any Third Party Person that may be ongoing with respect to any a Company Acquisition Proposal or and, if applicable, shall use reasonable best efforts to have returned to the Company any proposal, inquiry or offer confidential information that would reasonably be expected has been provided to lead to an Acquisition Proposal, and (y) request any Person in any such Third Party to promptly return discussions or destroy all confidential information concerning the Company and its Subsidiariesnegotiations. Except as expressly permitted by this Section 5.3, from From and after the date hereof of this Agreement until the Acceptance Time, or, if earlier, earlier to occur of the First Effective Time or the date of termination of this Agreement in accordance with Article 710, the Company shall not, and shall cause its Subsidiaries Affiliates and its and their respective officers, directors and employees not to (and shall use its reasonable best efforts to cause its and its Affiliates’ other Representatives not to), and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) initiate, solicit, initiate or knowingly facilitate encourage (including by way of furnishing information which has not been previously publicly disseminated), any inquiry, proposal, indication of interest or intentionally encourage the making of any offer or submission that constitutes which constitutes, or would reasonably be expected to lead to an to, a Company Acquisition Proposal; , (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this subject to Section 5.38.03(b), except thatapprove or recommend, the or propose to approve or recommend, a Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; , (Diii) subject to Section 8.03(b), approve or recommend, or propose to approve or recommend, or execute or enter into any letter of intent or agreement in principle or any Contract concerning any Alternative Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal Agreement (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the enter into, continue or otherwise participate in any discussions or negotiations regarding any Company Board Recommendation in the Proxy Statement Acquisition Proposal, or (v) resolve or agree to do any of the foregoing foregoing; provided, however, that if, prior to obtaining the Company Shareholder Approval, the Company receives a bona fide written Company Acquisition Proposal made after the date of this Agreement, which Company Acquisition Proposal did not result from a breach of this Section 8.03(a), if the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal is or is reasonably expected to lead to a Superior Proposal and that a failure to take such action with respect to such Company Acquisition Proposal is reasonably likely to be inconsistent with the fiduciary duties of the Company’s directors under applicable Law, the Company may, in response to such Company Acquisition Proposal, and subject to compliance with Section 8.03(c), furnish information with respect to the Company and its Subsidiaries to the Person or Persons making such Company Acquisition Proposal and engage in discussions or negotiations with such Person or Persons regarding such Company Acquisition Proposal; provided, that (A) the Company, prior to furnishing, or causing to be furnished, any action set forth nonpublic information related to the Company and its Subsidiaries to such Person or Persons, enters into a confidentiality agreement with the Person or Persons making such Company Acquisition Proposal that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent required pursuant to this Section 8.03 and (y) contains confidentiality provisions no less favorable in the foregoing clauses (i), (ii), (iv) or (v) aggregate to the Company than those contained in the Confidentiality Agreement as in effect immediately prior to the execution of this sentence Agreement, except that such confidentiality agreement need not include explicit or implicit standstill provisions or otherwise restrict the making of or amendment or modification to Company Acquisition Proposals (an “Acceptable Confidentiality Agreement”) and (B) promptly (and in any event within 24 hours) following furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent related such nonpublic information has not been previously so furnished to the foregoing clauses (i) Parent or (ii) of this sentence), a “Change of Board Recommendation”its Representatives).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (St Jude Medical Inc), Agreement and Plan of Merger (Abbott Laboratories)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the The Company shall, and agrees that it shall cause its Subsidiaries and Representatives to, (x) promptly --------------- immediately cease and cause to be terminated any discussions or all existing discussions, negotiations and communications with any Third Party that may be ongoing Persons with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this provided in Section 5.35.3(b), from and after the date hereof of this Agreement until the Acceptance Time, or, if earlier, the earlier of termination of this Agreement in accordance with Article 7or the Effective Time, the Company shall not, not and shall cause not authorize or permit its Subsidiaries not toofficers, and shall instruct its Representatives not directors, employees, investment bankers, attorneys, accountants or other agents (collectively, "Representatives") to on behalf of the Company, directly or indirectly (Ai) initiate, solicit--------------- solicit or knowingly encourage, or knowingly take any action to facilitate or intentionally encourage the making of of, any offer or submission that proposal which constitutes or would which may be reasonably be expected likely to lead to an any third-party Acquisition Proposal or (ii) enter into any agreement with respect to any Acquisition Proposal; , or (Biii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party the event of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an unsolicited Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available Company, engage in negotiations or discussions with, or provide any non-public information regarding the Company or its Subsidiaries to data to, any Person (other than ParentParent or any of its affiliates or representatives) relating to any Acquisition Proposal. Notwithstanding the foregoing, and Merger Sub and their respective Representatives acting nothing contained in their capacities as suchthis Section 5.3 shall prohibit the Company or the Company Board of Directors from (x) in connection the event of an unsolicited Acquisition Proposal, requesting from the third party such information as may be reasonably necessary for the Company Board of Directors to inform themselves as to the material terms of such Acquisition Proposal for the sole purpose of determining whether such Acquisition Proposal constitutes a Superior Proposal, provided, that (i) the Company Board of Directors shall have determined, in good faith after being advised by outside legal counsel, that taking such action with or in response respect to an Acquisition Proposal from such third party is necessary in order for the Company Board of Directors to discharge its fiduciary duties under applicable law and (ii) upon receipt of such information requested from the third party, neither the Company nor any of its Representatives shall be permitted to engage in any further discussion or negotiations with any proposal, inquiry or offer such third party that would reasonably be expected to lead to an Acquisition Proposal; otherwise violate paragraph (Da) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from (y) taking (and after disclosing to the date hereof until Company's stockholders) its position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 under the Acceptance Time, or, if earlier, Exchange Act or (z) making such disclosure to the termination Company's stockholders as in the good-faith judgment of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommendof Directors, or publicly propose after receipt of advice from outside legal counsel to approve or recommendthe Company, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, that such disclosure is necessary for the Company Board Recommendation, (iii) approve or cause the Company of Directors to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)comply with its fiduciary duties under applicable law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lee Sara Corp), Agreement and Plan of Merger (Lee Sara Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from From and after the date hereof until the Acceptance Time, or, if earlier, earlier of the Effective Time or the termination of this Agreement in accordance with pursuant to Article 7, the Company Company, its subsidiaries and their affiliates shall not, and shall cause its Subsidiaries the Company Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) initiate, solicit, initiate or encourage (including, without limitation, by way of furnishing non-public information or assistance), or take any other action to knowingly facilitate facilitate, any inquiry in connection with or intentionally encourage the making of any offer proposal from any Person that constitutes, or submission may reasonably be expected to lead to, an Acquisition Proposal (as defined in Section 5.10(f)), (ii) enter into, maintain, participate in or continue any discussion or negotiation with any Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) regarding an Acquisition Proposal, or furnish to any Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) any information or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other Person (other than Merger Sub, Parent or any of the Purchaser Representatives, as applicable) to make or effect an Acquisition Proposal, or (iii) enter into any agreement, arrangement or understanding with respect to, or otherwise publicly endorse, any Acquisition Proposal; provided, however, that nothing contained in this Section 5.10 shall prohibit the Company Board, prior to approval of this Agreement by the stockholders of the Company at the Stockholders Meeting, from furnishing information to, or engaging in discussions or negotiations with, any Person that makes an unsolicited Acquisition Proposal (which did not result from a breach of this Section 5.10) if (A) the Company Board determines in good faith after consultation with its independent outside legal counsel, that such action is necessary for the Company Board to comply with its fiduciary duties to the Company’s stockholders under applicable Law, (B) the Acquisition Proposal constitutes or would reasonably be expected to lead to an Acquisition Proposal; a Superior Proposal (Bas defined in Section 5.10(g)) engage and (C) prior to furnishing such information to, or engaging in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)with, except thatsuch Person, the Company may ascertain facts receives from any such Person making an Acquisition Proposal executed confidentiality agreement (which agreement shall be provided to Parent for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or purposes unless it is a confidentiality agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses place as of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance which by its terms is not permitted to be provided to Parent) with Article 7, neither terms no less favorable to the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualifyunless a confidentiality agreement already exists), in a manner adverse to Parent or Merger Suball material respects, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation than those contained in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Datastream Systems Inc), Agreement and Plan of Merger (Magellan Holdings, Inc.)
No Solicitation. (a) Except as expressly permitted by this Subject to Section 5.39, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company Securityholder shall not, and shall cause its Subsidiaries not to, and shall instruct use it reasonable best efforts to cause its Affiliates and Representatives not to on behalf of the Companyto: (a) directly or indirectly solicit, (A) seek, initiate, solicitknowingly encourage, or knowingly facilitate any inquiries regarding, or intentionally encourage the making of, any submission or announcement of any a proposal or offer that constitutes, or submission that constitutes or would could reasonably be expected to lead to an to, any Company Acquisition Proposal; (Bb) directly or indirectly engage in, continue, or otherwise participate in or knowingly facilitate any discussions or negotiations regarding, or furnish or afford access to any other Person any information in connection with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal or for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available encouraging or facilitating, any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry proposal or offer that would constitutes, or could reasonably be expected to lead to an to, any Company Acquisition Proposal; (Dc) enter into any agreement, agreement in principle, letter of intent intent, memorandum of understanding, or agreement in principle or any Contract concerning any similar arrangement with respect to a Company Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected Proposal; (d) solicit proxies with respect to lead to an a Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement the Transactions and the Merger Agreement) or otherwise encourage or assist any Person in taking or planning any action that could reasonably be expected to compete with, restrain, or otherwise serve to interfere with or inhibit the timely consummation of the Transactions in accordance with the terms of the Merger Agreement; or (e) initiate a stockholders’ vote or action by written consent of the Company’s stockholders with respect to a Company Acquisition Proposal. Notwithstanding the foregoing, Securityholder may (and may permit its Affiliates and its and its Affiliates’ Representatives to) participate in discussions and negotiations with any Person making a Company Acquisition Proposal (or its Representatives) with respect to such Company Acquisition Proposal if: (i) the Company is engaging in discussions or negotiations with such Person in accordance with Section 5.3(b))6.2 of the Merger Agreement; or and (Eii) reimburse or agree Securityholder’s negotiations and discussions are in conjunction with and ancillary to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from discussions and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)negotiations.
Appears in 2 contracts
Samples: Voting and Support Agreement (Neos Therapeutics, Inc.), Voting and Support Agreement (Aytu Bioscience, Inc)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from 1st United and its Subsidiaries shall not, and 1st United and its Subsidiaries shall use their best efforts to cause their respective representatives not to initiate, solicit or knowingly encourage or 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, prior to the time the approval of 1st United’s shareholders (“1st United Shareholder Approval”) is obtained but not after, (1) 1st United receives, after the date hereofexecution of this Agreement, the Company shallan unsolicited bona fide Acquisition Proposal from a person other than Valley, and shall cause (2) the 1st United Board of Directors concludes in good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be inconsistent with its fiduciary duties to 1st United’s shareholders under applicable law, 1st United may, and may permit its Subsidiaries and Representatives its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided, that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between Valley and 1st United dated January 30, 2014 (xthe “Confidentiality Agreement”) promptly and any non-public information provided to any person given access to nonpublic information shall have previously been provided to Valley or shall be provided to Valley prior to or concurrently with the time it is provided to such person. 1st United will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing persons other than Valley with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in not terminate, waive, amend, release or knowingly facilitate modify any discussions provision of any confidentiality or negotiations with respect thereto (other than informing standstill agreement relating to any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose to which it or any of the Company Board informing itself about such Acquisition Proposal its affiliates or representatives is a party and the Third Party making it; (C) make available use its commercially reasonable efforts to enforce any non-public information regarding the Company confidentiality or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Valley National Bancorp), Agreement and Plan of Merger (1st United Bancorp, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shallagrees that it will not, and shall will cause its Subsidiaries and Representatives 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 Company Acquisition Proposal; provided that, in the event Company receives an unsolicited bona fide Company Acquisition Proposal and the Board of Directors of Company concludes in good faith that such Company Acquisition Proposal constitutes, or is reasonably expected to result in, a Company 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 (xand based on the advice of counsel) promptly 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 and which expressly permits Company to comply with its obligations pursuant to this Section 6.8. Company will immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing persons other than Purchaser with respect to any Company Acquisition Proposal and will use its reasonable best efforts, subject to applicable law, to (i) enforce any confidentiality or similar agreement relating to a Company Acquisition Proposal and (ii) within ten business days after the date hereof, request and confirm the return or destruction of any confidential information provided to any person (other than Purchaser and its affiliates) pursuant to any such confidentiality or similar agreement. Company will promptly (and in any event within 24 hours) advise Purchaser following receipt of any Company Acquisition Proposal or any proposal, request for nonpublic information or inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party substance thereof (including the identity of the person making it; such Company Acquisition Proposal), and will keep Purchaser promptly apprised of any related developments, discussions and negotiations (Cincluding the terms and conditions of any such request, inquiry or Company Acquisition Proposal, or all amendments or proposed amendments thereto) make available on a current basis. Company agrees that it shall simultaneously provide to Purchaser any non-public confidential or nonpublic information regarding the concerning Company or any of its Subsidiaries that may be provided to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) person in connection with or in response to an any Company Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected which has not previously been provided to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Purchaser.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hilltop Holdings Inc.), Agreement and Plan of Merger (Plainscapital Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from Until the earlier of the Effective Time and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the valid termination of this Agreement in accordance with Article 7pursuant to Section 8.01, the Company shall not, and shall cause its Subsidiaries directors, officers and employees not to and shall direct and use its reasonable best efforts to cause its other Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) solicit, initiate, solicit, knowingly facilitate or intentionally knowingly encourage the making submission or announcement of any offer inquiries, proposals or submission offers that constitutes constitute or would reasonably be expected to lead to an Acquisition any Takeover Proposal; , (Bii) provide any non-public information concerning the Company to any Person or group who has made or would reasonably be expected to make any Takeover Proposal, or engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Takeover Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve approve, support, adopt, endorse or cause the Company to enter into recommend any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”)Takeover Proposal, (iv) fail take any action to include make the Company Board Recommendation provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the Corporation Law) inapplicable to any Person other than Parent and its Affiliates or to any transactions constituting or contemplated by a Takeover Proposal, (v) otherwise cooperate with or assist or participate in the Proxy Statement any such inquiries, proposals, offers, discussions or negotiations, or (vvi) resolve or agree to do any of the foregoing foregoing. The Company shall, and shall cause its directors, officers and employees to and shall direct and use its reasonable best efforts to cause its other Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Person or groups that may be ongoing with respect to any Takeover Proposal or potential Takeover Proposal. The Company shall promptly after the date hereof request each Person (if any) that has heretofore executed a confidentiality agreement (other than the Confidentiality Agreement) relating to a Takeover Proposal or potential Takeover Proposal to promptly return to the Company or destroy all non-public documents and materials relating to the Takeover Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any action set forth of its representatives to such Person or group or any of its representatives in accordance with the foregoing clauses (i)terms of such confidentiality agreement, (ii)and shall enforce, (iv) and not waive, terminate or (v) of this sentence (modify without Parent’s prior written consent, any standstill or similar provision in any confidentiality, standstill or other agreement with such Person; provided that the Company may waive any standstill or similar provisions to the extent related necessary to permit a Person or group to make, on a confidential basis to the foregoing clauses Company Board, a Takeover Proposal, conditioned upon such Person agreeing to disclosure of such Takeover Proposal to Parent, in each case as contemplated by this Section 6.02 (iprovided, further, that the Company may only take such action if the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure of the Company Board to take such action would be reasonably likely to be inconsistent with the exercise of its fiduciary duties under applicable Law). The Company shall not enter into any confidentiality agreement subsequent to the date hereof which prohibits the Company from providing to Parent the information required to be provided to Parent pursuant to this Section 6.02. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may in any event (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by such Person or group solely to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iiB) inform a Person or group that has made or, to the Knowledge of the Company, is considering making a Takeover Proposal of the provisions of this sentence), a “Change of Board Recommendation”)Section 6.02.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cadence Pharmaceuticals Inc), Agreement and Plan of Merger (Mallinckrodt PLC)
No Solicitation. (a) Except as expressly permitted by this Section 5.3During the Pre-Closing Period, from and after the date hereofSellers shall not, the Company shall, and nor shall cause its Subsidiaries and they authorize or permit any of their respective Representatives to, directly or indirectly: (xi) promptly cease and cause solicit, initiate or knowingly encourage (including by way of furnishing any non-public information relating to be terminated the Telematics Hardware Business), or knowingly induce or knowingly take any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that other action which would reasonably be expected to lead to an Acquisition Proposalthe making, and (y) request submission or announcement of, any such Third Party proposal or inquiry that constitutes, or is reasonably likely to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not lead to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an a Business Acquisition Proposal; (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence Persons of the provisions contained in this Section 5.3)5.4, except thatenter into, the Company may ascertain facts from continue or participate in any Person making an discussions or any negotiations regarding any Business Acquisition Proposal for the purpose of the Company Board informing itself about such or otherwise take any action to knowingly facilitate or knowingly induce any effort or attempt to make or implement a Business Acquisition Proposal and the Third Party making itProposal; (Ciii) make available any non-public information regarding the Company approve, endorse or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an recommend a Business Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent intent, memorandum of understanding or agreement in principle or any Contract concerning any contemplating a Business Acquisition Proposal or any proposal, inquiry requiring the Sellers to abandon or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b))terminate its obligations under this Agreement; or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) agree, resolve or agree commit to do any of the foregoing foregoing. Sellers shall, and shall cause their respective Representatives to, immediately cease and cause to be terminated all discussions or negotiations with any Person previously conducted with respect to any Business Acquisition Proposal. Sellers shall promptly deny to any third party access to any data room (virtual or actual) containing any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (confidential information previously furnished to any such third party relating to the extent Telematics Hardware Business and Sellers shall not otherwise provide any confidential information related to the foregoing clauses Telematics Hardware Business to any Person except Sellers’ legal, accounting and financial advisors and employees and officers of Sellers on a need to know basis. If Sellers or any of their Representatives receives any unsolicited Business Acquisition Proposal (i) or (ii) of this sentenceincluding, but not limited to, an inquiry for Sellers to provide non-public information to another party), a “Change Sellers shall promptly (and in any event within 24 hours) notify Purchaser in writing of Board Recommendation”)all material terms thereof including, but not limited to, the identity of the person making such unsolicited Business Acquisition Proposal.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Novatel Wireless Inc), Asset Purchase Agreement (Micronet Enertec Technologies, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, shall cause each of its controlled affiliates and its and their respective officers, directors and employees to, and shall use reasonable best efforts to cause its Subsidiaries and Representatives their respective agents, financial advisors, investment bankers, attorneys, accountants and other representatives (a person’s officers, directors, employees, agents, financial advisors, investment bankers, attorneys, accountants and other representatives being collectively its “Representatives”) to: (i) immediately cease any solicitation, (x) promptly cease and cause to be terminated any discussions knowing encouragement, discussion or negotiations negotiation with any Third Party person that may be is ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and promptly (and, in any event, within five business days of the date of this Agreement) (x) other than with respect to Buyer and its Representatives, terminate access to any virtual data room established for or used in connection with any actual or potential Acquisition Proposal and (y) request instruct (to the extent it has contractual authority to do so and has not already done so prior to the date of this Agreement) or otherwise request, any such Third Party person that has executed a confidentiality or non-disclosure agreement within the 12-month period prior to promptly the date of this Agreement in connection with any actual or potential Acquisition Proposal to return or destroy all confidential such non-public information concerning or documents or material incorporating non-public information in the Company possession of such person or its Representatives and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof (ii) until the Acceptance Time, Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7Termination Date, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (A1) initiate, solicit, initiate or knowingly facilitate or intentionally knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that constitutes, or submission that would reasonably be expected to lead to, an Acquisition Proposal, (2) engage in or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with or for the purpose of encouraging or facilitating, an Acquisition Proposal (in each case, other than (x) solely in response to an unsolicited inquiry, to refer the inquiring person to this Section 5.3 and to limit its conversation or other communication exclusively to such referral or (y) to seek to clarify and understand the terms and conditions of any Acquisition Proposal (or amended proposal) solely to determine if such proposal constitutes or would reasonably be expected to lead to an Acquisition a Superior Proposal; ), or (B3) engage approve, recommend or enter into, or propose to approve, recommend or enter into, any letter of intent, agreement, commitment or agreement in principle (whether written or knowingly facilitate any discussions oral, binding or negotiations nonbinding) with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition ProposalAgreement. Except as expressly permitted by this Section 5.3, from and after in the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither event that the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose of Directors has determined in good faith after consultation with Company’s outside legal counsel that the failure to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in take such action would be reasonably likely to constitute a manner adverse to Parent or Merger Sub, breach of the fiduciary duties of the Company Board Recommendationof Directors under applicable Law, (iii) approve Company and its Subsidiaries shall not release any third party from, or cause the waive, amend or modify any provision of, or grant permission under any standstill provision in any agreement to which Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (its Subsidiaries is a party. Company shall, and shall cause its Subsidiaries to, enforce any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)such standstill provisions.
Appears in 2 contracts
Samples: Transaction Agreement (Borgwarner Inc), Transaction Agreement (Delphi Technologies PLC)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from From and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by of this Section 5.3, from and after the date hereof Agreement until the Acceptance Time, or, if earlier, earlier to occur of the Effective Time and the termination of this Agreement in accordance with Article 7IX, and except as otherwise specifically provided for in this Section 7.2, (i) the Company shall, and shall cause each of its Subsidiaries and its and their respective directors, officers and employees to, and shall cause its and their respective other Representatives to, immediately cease and cause to be terminated any existing discussions or negotiations with any Third Party with respect to a Company Acquisition Proposal or any inquiry, proposal or offer which constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, and the Company shall promptly (and in any event within three (3) Business Days of the date hereof) request in writing that each Third Party that has previously executed a confidentiality or similar agreement promptly return to the Company or destroy, in accordance with the terms of such confidentiality agreement, all non-public information previously furnished or made available to such Third Party or any of its Representatives by or on behalf of the Company or its Representatives, and (ii) the Company shall not, and shall cause each of its Subsidiaries and its and their respective directors, officers and employees not to, and shall instruct not permit its and their respective other Representatives not to on behalf of the Companyto, directly or indirectly, (A) initiate, solicit, initiate or knowingly facilitate encourage any Company Acquisition Proposal or intentionally encourage the making of any inquiry, proposal or offer which constitutes, or submission that constitutes or would could reasonably be expected to lead to an to, a Company Acquisition Proposal; , (B) engage participate in any negotiations or knowingly facilitate any discussions regarding, or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries furnish to any Person (other than Parent, and Merger Sub its Affiliates and their respective Representatives acting Representatives) any nonpublic information relating to the Company and its Subsidiaries, or provide access to the properties or personnel of the Company and its Subsidiaries, in their capacities as such) each case, in connection with or in response to an any Company Acquisition Proposal or any proposalinquiry, inquiry proposal or offer which constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, (C) approve or recommend, or make any public statement approving or recommending, a Company Acquisition Proposal or any proposal or offer which constitutes, or could reasonably be expected to lead to, a Company Acquisition Proposal, (D) grant any waiver, amendment or release under any “standstill” or confidentiality agreement (unless the Company Board has determined in good faith, after consultation with its outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law), (E) approve or execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement that constitutes a Company Acquisition Proposal or any proposal or offer which could reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an a Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 5.3(b7.2(b)); or ) (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (ivF) fail submit any Company Acquisition Proposal to include a vote of the stockholders of the Company Board Recommendation in the Proxy Statement or (vG) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Covanta Holding Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shallCarbon Black is required to, and shall is required to cause each of its Subsidiaries and Representatives subsidiaries’ representatives to, immediately (xi) promptly cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing Person (other than Parent and its Subsidiaries) conducted prior to the date of the Merger Agreement with respect to any Acquisition Takeover Proposal or any proposalinquiry, inquiry proposal or offer that would constitutes or could reasonably be expected to lead to an Acquisition a Takeover Proposal, and (yii) request terminate access by any such Third Party to promptly return or destroy all confidential information concerning the Company Person (other than Parent and its Subsidiaries. Except as expressly permitted by this Section 5.3) to any physical or electronic data room relating to any Takeover Proposal or any inquiry, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate proposal or intentionally encourage the making of any offer or submission that constitutes or would could reasonably be expected to lead to an Acquisition a Takeover Proposal; , and (Biii) engage in request that each such Person promptly return or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any destroy all non-public information regarding the Company previously furnished to such Person or any of its Representatives. Carbon Black shall not modify, amend or terminate, or waive, release or assign, any provisions of any confidentiality or standstill agreement (or any similar agreement) to which Carbon Black or any of its Subsidiaries is a party relating to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Takeover Proposal or any proposal, inquiry that constitutes or offer that would could reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition a Takeover Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse and shall enforce the expenses provisions of any such agreement, except that Carbon Black shall be permitted on a confidential basis to release or waive any standstill obligations solely to the extent necessary to permit the other Person party thereto to submit a Takeover Proposal Carbon Black’s Board on a confidential basis. Carbon Black is required to provide prompt (other than and in any event within 24 hours) written notice to Parent of each such release or waiver of any standstill obligations, including in such notice the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposalidentities of the parties thereto and circumstances relating thereto. Except as expressly permitted by this Section 5.3, from From and after the date hereof of the Merger Agreement until the earlier of the Offer Acceptance Time, or, if earlier, Time and the termination of this Agreement in accordance with Article 7the Merger Agreement, neither the Company Board nor any committee thereof Carbon Black shall (i) approve or recommendnot, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).and Carbon Black shall
Appears in 1 contract
Samples: Vmware, Inc.
No Solicitation. (a) Except as expressly permitted by this Section 5.3Other than with respect to the Transaction, from each of the Affiliated Companies and after the date hereofApplied Spectrum agrees that neither it nor any of its officers, the Company directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its Subsidiaries and Representatives its agents and other representatives (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (xi) promptly a merger, reorganization, share exchange, consolidation or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase of all or substantially all of the assets or equity securities of it, taken as a whole, in a single transaction or series of related transactions or (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of Applied Spectrum Common Stock or the Company’s Shares (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal“). Each of the Affiliated Companies and Applied Spectrum further agree that they and their officers, directors, managers, or managing members shall, and that they shall direct and use their reasonable best efforts to cause their agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Applied Spectrum agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any Third Party that may be ongoing parties conducted heretofore with respect to any Acquisition Proposal or any proposal, inquiry or offer Proposal. Each of the Affiliated Companies and Applied Spectrum agree that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party they will take the necessary steps to promptly return inform the individuals or destroy all confidential information concerning entities referred to in the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date first sentence hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained obligations undertaken in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)6.7.
Appears in 1 contract
Samples: Exchange Agreement (Applied Spectrum Technologies Inc)
No Solicitation. (a) Except as expressly permitted by this Subject to Section 5.35.15, from and after the date hereof, the Company shalleach Stockholder shall not, and shall cause its Subsidiaries controlled Affiliates and its and their respective Representatives not to, and each Stockholder shall not publicly propose to, directly or indirectly (xother than with respect to Parent and Purchaser), (a) promptly cease and cause solicit, initiate, knowingly facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that could reasonably be expected to be terminated lead to, an Acquisition Proposal, (b) engage in, continue or otherwise participate in any discussions or negotiations with any Third Party that may be ongoing regarding, or furnish to any Third Party information or provide to any Third Party access to the businesses, properties, assets or personnel of the Company or any of its Subsidiaries with respect to any Acquisition Proposal or any proposalin connection with or with the purpose or effect of encouraging or facilitating, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and or (yc) request enter into any letter of intent, agreement, contract, commitment, agreement in principle or any other arrangement or understanding with respect to an Acquisition Proposal or enter into any agreement, contract, commitment, arrangement or understanding requiring such Third Party Stockholder to, or contemplating that such Stockholder will, abandon, terminate or fail to promptly return or destroy all confidential information concerning consummate the Company and its Subsidiaries. Except as expressly permitted transactions contemplated by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall notAgreement. Each Stockholder shall, and shall cause its Subsidiaries not controlled Affiliates and its and their respective Representatives to, immediately cease and shall instruct terminate any existing solicitation, encouragement, discussion or negotiation with any Third Party theretofore conducted by such Stockholder, its controlled Affiliates or its or their respective Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead with respect to an Acquisition Proposal; . Except to the extent such notice has previously been provided by the Company pursuant to the Merger Agreement, each Stockholder shall as promptly as practicable (Band in any event within twenty-four (24) engage hours) notify Parent of any Acquisition Proposal, or any request for information or inquiry that such Stockholder reasonably believes could lead to or contemplates an Acquisition Proposal, which notification shall include (i) a copy of the applicable written Acquisition Proposal, request or inquiry (or, if oral, the material terms and conditions of such Acquisition Proposal, request or inquiry) (including in each case any subsequent material amendments or knowingly facilitate other material modifications thereto) and (ii) the identity of the Third Party making such Acquisition Proposal, request or inquiry. Notwithstanding anything to the contrary provided in this Agreement, the Stockholder or any of its controlled Affiliates or Representatives shall not be prohibited from participating in any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)to a possible tender and support, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company voting or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or similar agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request in the event that would reasonably be expected the Company is permitted to lead take the actions set forth in Section 5.3(b) of the Merger Agreement with respect to an such Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)4.7.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after From the date hereofhereof until the termination of this Agreement pursuant to Section 4 , the Company Shareholder shall, and shall cause its Subsidiaries Affiliates and its and its Affiliates’ directors, officers, employees, agents and other representatives (including any investment banker, attorney or accountant retained by it or any of its Affiliates) (collectively, the “ Shareholder Representatives “) not to, initiate, solicit, knowingly encourage or otherwise facilitate (xincluding by way of furnishing information) promptly any inquiries or the making of any inquiry, proposal or offer, with respect to or which may reasonably be expected to lead to any Acquisition Proposal. Shareholder further agrees that neither it nor any of its Affiliates nor any of its or its Affiliates’ directors, officers, or employees shall, and that it shall direct and use its reasonable best efforts to cause its and its Affiliates’ agents and representatives not to, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or otherwise enter into any agreement with respect to an Acquisition Proposal. Shareholder agrees that it will immediately cease and cause to be terminated any existing discussions or negotiations with any Third Party that may be ongoing parties conducted heretofore with respect to any Acquisition Proposal Proposal. Shareholder agrees that it will take the necessary steps to promptly inform the Shareholder Representatives of the obligations undertaken by Company in this Section 1(e) . Shareholder shall use reasonable best efforts to obtain the return from all such Persons or cause the destruction of all copies of confidential information previously provided to any such parties by Shareholder or Shareholder Representatives. Further, Shareholder agrees to comply with the provisions of Section 4.2 of the Acquisition Agreement as if a party thereto. Shareholder shall promptly advise Purchaser, orally and in writing, and in no event later than 24 hours after receipt, if any proposal, offer, inquiry or offer that would reasonably other contact is received by, any information is requested from, or any discussions or negotiations are sought to be expected to lead to an initiated or continued with, Shareholder in respect of any Acquisition Proposal, and (y) request shall, in any such Third Party notice to promptly return Purchaser, indicate the identity of the Person making such proposal, offer, inquiry or destroy all confidential information concerning other contact and the Company terms and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after conditions of any proposals or offers or the date hereof until the Acceptance Time, or, if earlier, the termination nature of this Agreement in accordance with Article 7, the Company shall not, any inquiries or contacts (and shall cause its Subsidiaries not to, and shall instruct its Representatives not to include with such notice copies of any written materials received from or on behalf of the Companysuch Person relating to such proposal, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposaloffer, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter request), and thereafter shall promptly keep Purchaser fully informed of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse all material developments affecting the expenses status and terms of any other Person such proposals, offers, inquiries or requests (other than the and Shareholder shall provide Purchaser with copies of any additional written materials received that relate to such proposals, offers, inquiries or requests). As used in this paragraph, “Affiliates” of Shareholder shall not include Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 1 contract
Samples: Support Agreement (A. Soriano CORP)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereofThe Company, the Company shall, and shall cause its Subsidiaries and Representatives totheir respective officers, directors or employees, or investment bankers, attorneys, accountants or other advisors, agents or representatives (xcollectively, “Representatives”) promptly immediately shall cease and cause to be terminated any activities, discussions or negotiations with any Third Party that may be ongoing existing as of the date of this Agreement with respect to any Company Takeover Proposal (as defined in Section 5.02(e)) and, to the extent permitted by the applicable confidentiality or similar agreement governing such activities, discussions or negotiations, require any third parties to such activities, discussions or negotiations to return to the Company or to destroy all confidential information of the Company or any Company Subsidiary. The Company shall not, nor shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representatives of the Company or any Company Subsidiary to, (i) directly or indirectly solicit, initiate or encourage (including by way of furnishing information) the submission of, or take any other action designed to facilitate, any inquiries or the making of any proposal that constitutes or is reasonably expected to lead to any Company Takeover Proposal, (ii) enter into any Company Acquisition Agreement (as defined in Section 5.02(b)) with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any proposaldiscussions or negotiations regarding, inquiry or offer 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 would constitutes, or may reasonably be expected to lead to, any Company Takeover Proposal; provided, however, that prior to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning receipt of the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after Shareholder Approval (the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7“Company Applicable Period”), the Company shall notmay, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage extent required by the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose fiduciary obligations of the Company Board informing itself about such Acquisition to the shareholders of the Company under applicable Law, as determined in good faith by a majority of the members of the Company Board after consultation with the Company’s outside counsel, in response to a bona fide written Company Takeover Proposal that is made by a person that the Company Board determines, in good faith, after consultation with the Company’s outside counsel and the Third Party making it; (C) make available any non-public information regarding financial advisors, constitutes or is reasonably expected to result in a Superior Company Proposal that was not solicited by the Company or its Subsidiaries to any Person (other than ParentRepresentatives and that did not otherwise result from a breach or a deemed breach of this Section 5.02(a), and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response subject to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance compliance with Section 5.3(b5.02(c)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (iix) withdraw, change or qualify, in a manner adverse furnish information with respect to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum the person making such Company Takeover Proposal pursuant to a confidentiality and standstill agreement not less restrictive of understanding, the other party than the Confidentiality Agreement (as defined in Section 6.02); provided that such confidentiality and standstill agreement in principle, investment agreement, letter of intent may allow such party to submit to the Company a non-public proposal or other similar agreement offer relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the a Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).Takeover Proposal; and
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from From and after the date hereofof this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shalland its subsidiaries will not, and shall cause its Subsidiaries and Representatives nor will they authorize or permit any of their respective officers, directors, controlled affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (xi) promptly cease and cause to be terminated solicit, initiate, induce or knowingly encourage the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations with a third party regarding, or furnish to any Third Party person any information with respect to, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes or may reasonably be ongoing expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (yiv) request approve, endorse or recommend any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (Dv) enter into any letter of intent or agreement in principle similar document or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understandingcontract, agreement in principle, investment agreement, letter of intent or other similar agreement commitment contemplating or otherwise relating to any Acquisition Transaction (as defined below); provided, however, 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 or (ii) in response to an unsolicited, bona fide written Acquisition Proposal that Company's Board of Directors reasonably concludes constitutes a Superior Proposal (in each case, an “Alternative Acquisition Agreement”as defined below), engaging in discussions or participating in negotiations with and furnishing information to the party making such Acquisition Proposal and approving, endorsing or recommending such Acquisition Proposal and withdrawing its recommendation of this Agreement and the Merger to the extent (ivA) fail the Board of Directors of Company determines in good faith after consultation with its outside legal counsel (who may be Company's independent legal counsel acting with respect to include the Company Board Recommendation in the Proxy Statement or (vthis Agreement) resolve or agree its fiduciary obligations under applicable law require it to do any of the foregoing (any action set forth in the foregoing clauses (i)so, (ii)B) (x) at least three (3) (which shall include at least two (2) business days) 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 (ivy) 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 (vC) of this sentence contemporaneously with furnishing any such nonpublic information to such party, Company furnishes such nonpublic information to Parent (to the extent related such nonpublic information has not been previously furnished by the Company to Parent). 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. Without limiting the foregoing clauses (i) foregoing, it is understood that any violation of the restrictions set forth in this Section 5.4 by any officer, director, controlled affiliate or (ii) 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 breach of this sentence), a “Change of Board Recommendation”).Section 5.4
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from From and after February 2, 2000 until the date hereofEffective Time or termination of this Agreement pursuant to Article VII, the Company shalland its subsidiaries will not, and shall cause its Subsidiaries and Representatives nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (xi) promptly cease and cause to be terminated solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person other than Parent 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 Acquisition Proposal, (iii) engage in discussions with any Third Party that may be ongoing person with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party except as to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this these provisions, (iv) subject to Section 5.3)5.2(c) approve, except that, the Company may ascertain facts from endorse or recommend any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (Dv) enter into any letter of intent or agreement in principle similar document or any Contract concerning contract agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that after receipt of an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of the Company reasonably concludes may constitute a Superior Offer, the Company may submit to the party making such Acquisition Proposal a written list of questions, the sole purpose of which is to elicit clarifications as to the material terms of the Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether such Acquisition Proposal is in fact a Superior Offer (it being agreed that any correspondence with such party shall be limited to questions and such questions shall be limited to the purpose of clarifying the material terms of such Acquisition Proposal and shall not solicit or encourage any new Acquisition Proposal or any proposalchange to the Acquisition Proposal, inquiry or offer and it being further agreed that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance the Company shall provide Parent with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses a copy of any other Person (other than the Company’s Representativescorrespondence to be delivered 29 34 pursuant to this Section 5.5(a) in connection at least 24 hours prior to sending such correspondence to any third party). The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected parties conducted heretofore with respect to lead to an any Acquisition Proposal. Except as expressly permitted by this Section 5.3Without limiting the foregoing, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor it is understood that any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any violation of the foregoing (any action restrictions set forth in the foregoing clauses (i)preceding two sentences by any officer, (ii)director or employee of the Company or any of its subsidiaries or any investment banker, (iv) attorney or (v) other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this sentence (to Section 5.5 by the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Company.
Appears in 1 contract
No Solicitation. Subject to Section 10 and except as provided hereby, Shareholder shall not, and shall use its reasonable best efforts to cause its Affiliates and representatives not to: (a) Except as expressly permitted by this Section 5.3directly or indirectly solicit, from and after seek, initiate, knowingly encourage, or knowingly facilitate any inquiries regarding, or the date hereofmaking of, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions submission or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry announcement of a proposal or offer that would constitutes, or could reasonably be expected to lead to an to, any Acquisition Proposal; (b) directly or indirectly engage in, and (y) request continue, or otherwise participate in any such Third Party discussions or negotiations regarding, or furnish or afford access to promptly return any other Person any information in connection with or destroy all confidential information concerning for the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3purpose of encouraging or facilitating, from and after the date hereof until the Acceptance Timeany proposal or offer that constitutes, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would could reasonably be expected to lead to an to, any Acquisition Proposal; (Bc) engage enter into any agreement, agreement in principle, letter of intent, memorandum of understanding, or knowingly facilitate any discussions or negotiations similar arrangement with respect thereto to an Acquisition Proposal or Acquisition Transaction; (d) solicit proxies with respect to an Acquisition Proposal or Acquisition Transaction (other than informing the Merger and the Merger Agreement) or otherwise encourage or assist any Third Party Person in taking or planning any action that could reasonably be expected to compete with, restrain, or otherwise serve to interfere with or inhibit the timely consummation of the existence Merger in accordance with the terms of the provisions contained Merger Agreement; or (e) initiate a shareholders’ vote or action by written consent of Prudential’s shareholders with respect to an Acquisition Proposal or Acquisition Transaction. Notwithstanding the foregoing, Shareholder may (and may permit its Affiliates and its and its Affiliates’ representatives to) participate in this Section 5.3), except that, the Company may ascertain facts from discussions and negotiations with any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about (or its representatives) with respect to such Acquisition Proposal and the Third Party making it; if: (Ci) make available any non-public information regarding the Company Prudential is engaging in discussions or its Subsidiaries to any negotiations with such Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b))5.8 of the Merger Agreement; or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, Shareholder’s negotiations and discussions are in a manner adverse conjunction with and ancillary to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Prudential’s discussions and negotiations.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company No party hereto shall, and each such party shall cause its Subsidiaries and subsidiaries not to, permit any of its Representatives to, and shall use its best efforts to cause such persons not to, directly or indirectly, initiate, solicit or encourage, or take any action to facilitate the making of any offer or proposal which constitutes or is reasonably likely to lead to any Takeover Proposal (x) promptly as defined below), or, in the event of any unsolicited Takeover Proposal, engage in negotiations or provide any confidential information or data to any person relating to any Takeover Proposal. Notwithstanding the foregoing, in the event of an unsolicited Takeover Proposal, unless the Sun Shareholder Approval and the BSI Shareholder Approval shall have both been obtained, Sun or BSI may, to the extent that its Board of Directors is advised in a written, reasoned opinion of outside counsel that such action is required by its fiduciary duties under law, participate in discussions or negotiations with and furnish information to any person in connection with an unsolicited Takeover Proposal made by such person. Each party hereto shall notify the other party orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions of any such proposal and the identity of the person making it), within 24 hours of the receipt thereof, shall keep the other party informed of the status and details of any such inquiry and shall give the other party five days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. Each party hereto shall immediately cease and cause to be terminated any all existing discussions or negotiations and negotiations, if any, with any Third Party that may be ongoing parties conducted heretofore with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Takeover Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained As used in this Section 5.3)4.1.6, except that"Takeover Proposal" shall mean any tender or exchange offer, the Company may ascertain facts from proposal for a merger, consolidation or other business combination involving any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries party to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal this Agreement or any proposalof its material subsidiaries, inquiry or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”)whether or not in writing and whether or not delivered to the stockholders of a party generally) to acquire in any manner, (iv) fail directly or indirectly, a substantial equity interest in, or a substantial portion of the assets of any party to include the Company Board Recommendation in the Proxy Statement this Agreement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i)its material subsidiaries, (ii), (iv) or (v) of this sentence (other than pursuant to the extent related transactions contemplated by this Agreement. Nothing contained herein shall prohibit a party from taking and disclosing to its shareholders a position contemplated by Rule 14c-2(a) under the foregoing clauses (i) or (ii) Exchange Act with respect to a Takeover Proposal by means of this sentence), a “Change of Board Recommendation”)tender offer.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by Subject to the other provisions of this Section 5.35.4, from and after the date hereoftime of the execution of this Agreement until the earlier of the Effective Time or the Termination Date, the Company agrees that neither it nor any of its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its Subsidiaries and their respective Representatives not to, directly or indirectly, (xi) promptly cease and cause to be terminated solicit, initiate or knowingly encourage any discussions inquiry, proposal or negotiations with any Third Party that may be ongoing offer with respect to any Acquisition Proposal to, or any proposal, inquiry or offer that would which could reasonably be expected to lead to, or the making, submission or announcement of, any Alternative Proposal, (ii) participate in any discussions or negotiations regarding an Alternative Proposal with any Person, except to notify such Person as to the existence of the provisions of this Section 5.4(a), or furnish any non-public information to any Person in connection with or in respect of an Alternative Proposal or any inquiry, proposal or offer that could reasonably be expect to lead to an Acquisition Alternative Proposal, (iii) approve, endorse or recommend any Alternative Proposal, (iv) enter into, or authorize the entry into, any letter of intent, agreement in principle, definitive agreement or any other agreement for any Alternative Proposal (except for confidentiality agreements of the type set forth under, and to the extent authorized by, Section 5.4(b)) or (yv) request otherwise knowingly facilitate the making or submission of any such Third Alternative Proposal. Notwithstanding the foregoing, the Company and its Subsidiaries need not, prior to the Excluded Party to promptly return or destroy all Deadline, require Persons previously provided confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to respect of an Acquisition Proposal Alternative Proposal, or any proposalinquiry, inquiry proposal or offer that would could reasonably be expected expect to lead to an Acquisition Alternative Proposal, to return or destroy such information which may be in such Person’s possession or control or terminate access of such Person and its Representatives to any physical or electronic dataroom containing information about the Company and its Subsidiaries or their respective businesses; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposalprovided, inquiry or offer that would reasonably be expected on such date, the Company and its Subsidiaries shall, and the Company shall use its reasonable best efforts to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person cause its and their respective Representatives to, require all such Persons (other than the Company’s Parent and its Representatives and other than any Person to whom the Company is authorized to provide non-public information pursuant to Section 5.4(b) as of such date) to promptly return or destroy such confidential information and terminate access for all such Persons (other than the Parent and its Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating their Representatives to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement such physical or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)electronic dataroom.
Appears in 1 contract
Samples: Agreement and Plan of Merger (National Financial Partners Corp)
No Solicitation. (a) Except CrossComm and its subsidiaries, together with the officers, directors, employees or other agents of CrossComm and its subsidiaries, (i) shall not, directly or indirectly, take any action to solicit, initiate or encourage any inquiries or proposals that constitute, or which could reasonably be expected to lead to, an Acquisition Proposal (as expressly permitted by this defined in Section 5.34.3(d)), from and after (ii) shall not, directly or indirectly, subject to the date hereofterms of the immediately following sentence, engage in negotiations or discussions with, or disclose any nonpublic information relating to CrossComm or any of it subsidiaries to, or afford access to the Company shallproperties, books or records of CrossComm or any of its subsidiaries to, any person with regard to an Acquisition Proposal, and (iii) shall cause its Subsidiaries and Representatives to, (x) promptly immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing person, firm or entity conducted heretofore with respect to any of the foregoing and shall inform any such person, firm or entity of the obligations undertaken by CrossComm in this Section 4.3; provided, however, that nothing herein shall prohibit the CrossComm Board from taking and disclosing to CrossComm's 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, if (1) an unsolicited bona fide written Acquisition - 35 - 40 Proposal, or an unsolicited bona fide expression of interest that CrossComm reasonably expects could lead to a Acquisition Proposal, shall be received by the CrossComm Board, (2) the CrossComm Board believes in good faith that such Acquisition Proposal would, if consummated, result in a transaction more favorable to CrossComm's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (3) the CrossComm Board determines in good faith that it is necessary for the CrossComm Board to comply with its fiduciary duties to CrossComm's stockholders under applicable law by considering the Superior Proposal and taking actions consistent herewith with respect thereto, and (4) that the party making such Superior Proposal has the financial means, or the ability to obtain the necessary financing, to consummate such transaction (it being understood that nothing herein shall prohibit CrossComm from engaging in discussions with such party for the limited purpose of determining that such party has the financial means, or ability to obtain the necessary financing, to consummate such transaction), then CrossComm and its subsidiaries, together with their respective officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives, may (consistent with the provisions hereof) furnish in connection therewith information, enter into discussions and negotiations, recommend such Superior Proposal to CrossComm's stockholders and take such other actions as are consistent with the fiduciary obligations of the CrossComm Board, and such actions shall not be considered a breach of this Section 4.3 or any proposalother provisions of this Agreement, inquiry provided that, in each such event, CrossComm notifies Olicom of such determination by the CrossComm Board and provides Olicom with a written summary in reasonable detail of the Superior Proposal (including the identity of the offeror and the terms thereof) received from such third party, together with a copy of all documents containing or offer referring to non-public information of CrossComm that would reasonably are supplied to such third party and that were not previously supplied to Olicom; and provided, further, that in order for the foregoing actions to not be expected considered a breach of this Section 4.3 or any other provision of this Agreement, (x) CrossComm shall not provide any material non-public information to lead any such third party if it has not prior to an Acquisition Proposalthe date thereof provided such information to Olicom or Olicom's representatives, and (y) request any CrossComm provides such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding pursuant to a binding non-disclosure agreement with terms no less favorable as to confidential information as the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement (as defined in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”5.4).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Crosscomm Corp)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shallTarget agrees that it will not, and shall will cause its Subsidiaries and its and their officers, directors, agents, advisors and representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, knowingly encourage or knowingly facilitate inquiries or proposals with respect to, (ii) engage or participate in any negotiations with any Person concerning, or (iii) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any Person relating to, any Acquisition Proposal, except to notify such Person of the existence of the provisions of this Section 6.13; provided, that, prior to the adoption of this Agreement by the shareholders of Target by the Requisite Target Vote, in the event Target receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (xafter receiving the advice of its outside counsel, and with respect to financial matters, its financial advisors) promptly that failure to take such actions would be inconsistent with its fiduciary duties under applicable Law; provided further, that, prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, Target shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement, which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with Target. Target will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing Person other than Parent with respect to any Acquisition Proposal and will use commercially reasonable efforts, subject to applicable Law, to (x) enforce any confidentiality, standstill or similar agreement relating to an Acquisition Proposal and (y) within ten (10) Business Days after the date hereof, request and confirm the return or destruction of any confidential information provided to any Person (other than Parent and its Affiliates) pursuant to any such agreement. Target will promptly (within twenty-four (24) hours) advise Parent following receipt of any Acquisition Proposal or any proposal, inquiry or offer that would which could reasonably be expected to lead to 57 an Acquisition Proposal, and the substance thereof (y) request any such Third Party to promptly return or destroy all confidential information concerning including the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf identity of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available copies of any non-public information regarding the Company or its Subsidiaries to any Person (other than Parentwritten Acquisition Proposal), and Merger Sub will keep Parent apprised of any related developments, discussions and their respective Representatives acting in their capacities as such) in connection with negotiations on a current basis, including any amendments to or in response to an Acquisition Proposal or any proposal, revisions of the terms of such inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Veritex Holdings, Inc.)
No Solicitation. (a) Except as expressly permitted by this Prior to the Termination Date, subject to Section 5.3, from and after the date hereof5, the Company Shareholder shall, and shall use commercially reasonable efforts to cause its Subsidiaries his employees, investment bankers, financial advisors, attorneys, accountants, agents and Representatives other representatives (collectively, the “Representatives”) to, (x) promptly immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing Person conducted heretofore with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party other than the Merger. Prior to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Termination Date, subject to Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier5, the termination of this Agreement in accordance with Article 7, the Company Shareholder shall not, and shall use commercially reasonable efforts to cause its Subsidiaries his Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) solicit, initiate, solicit, or knowingly facilitate or intentionally encourage (including by way of furnishing non-public information) the making of any proposal or offer or submission that constitutes or would reasonably be expected to lead to an concerning any Acquisition Proposal; , other than the Merger, (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (any third party concerning any Acquisition Proposal, other than informing the Merger, (iii) approve, endorse or recommend any Third Party of the existence of the provisions contained in this Section 5.3)Acquisition Proposal, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and the Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (Div) enter into any letter of intent or similar agreement in principle or any Contract concerning contemplated by or otherwise related to any Acquisition Proposal or any proposalProposal, inquiry other than the Merger. If the Shareholder receives an unsolicited proposal or offer concerning an Acquisition Proposal, he will notify the Company of such proposal or offer so that would reasonably be expected the Company may comply with its obligations under the Merger Agreement. Notwithstanding the foregoing, the Shareholder is permitted to lead take any actions otherwise prohibited by this paragraph if such action is related to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree and if, and only during such time as and to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlierextent that, the termination Company is then permitted under the Merger Agreement to engage in discussions or negotiations with such Person or group of this Agreement in accordance with Article 7, neither related Persons that has made the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, and provided that the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement is in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any compliance with Section 5.07 of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Merger Agreement.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from SFSB and after the date hereof, the Company Stanton Savings agree xxxx xxither they nor any of their respective officers or directors shall, and that they shall direct and use their reasonable best efforts to cause its Subsidiaries each of their employees, agents and Representatives representatives not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of all or substantially all of the assets of SFSB or more than 9.9% of the outstanding equity securities of SFSB or Stanton Savings (xany sxxx xxxposal or offer being hereinafter referred to as an "Acquisition Proposal"). SFSB and Stanton Savings furthex xxxxx that neither SFSB nor Stanton Savings nor xxx xx their respective officers and directors shall, and that they shall direct and use their reasonable best efforts to cause their employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent SFSB or Stanton Savings from (X) promptly xxxxlying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal if SFSB receives from the person so requesting such information an executed confidentiality agreement; (C) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the stockholders of SFSB, if and only to the extent that, (i) in each such case referred to in clauses (B), (C) or (D) above, the SFSB Board of Directors determines in good 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 (ii) in the case referred to in clause (D) above, the SFSB Board of Directors determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to SFSB's stockholders from a financial point of view than the Merger. SFSB and Stanton Savings agrex xxxx they will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing parties conducted heretofore with respect to any Acquisition Proposal Proposals. SFSB and Stanton Savings agree xxxx xxey will notify Laurel immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations are sought to be initiated or continued with, any of its representatives, and the substance thereof and will keep Laurel informed of any developments with respect thereto (other than informing any Third Party of immediately following the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)occurrence thereof.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (SFSB Holding Co)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after From the date hereofhereof until the earlier of the approval and adoption of this Agreement and approval of the Merger by the Company's stockholders or the termination of this Agreement, the Company shalland its subsidiaries shall not, and shall cause its Subsidiaries and Representatives nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney, accountant, or other advisor or representative retained by any of them ("REPRESENTATIVES") to, directly or indirectly: (xi) promptly cease and cause to be terminated any discussions solicit, initiate, knowingly or negotiations with any Third Party that may be ongoing with respect to intentionally encourage, facilitate or induce the making, submission or announcement of any Acquisition Proposal (as defined in Section 5.4(d) hereof); (ii) participate in any negotiations or discussions regarding, or furnish to any proposalperson any non-public information with respect to, inquiry or offer take any other action to facilitate any inquiries or the making of any proposal that would constitutes or may reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (Biii) engage in subject to the terms of Section 5.4(c) hereof, approve, endorse or knowingly facilitate recommend any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; or (Div) enter into any letter of intent or agreement in principle similar document or any Contract concerning contemplating or otherwise relating to any Acquisition Proposal Transaction (as defined in Section 5.4(d) hereof); provided, however, that the terms of this Section 5.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company and its subsidiaries to, entering into a confidentiality agreement with or entering into negotiations or discussions with, any proposal, inquiry person or offer that would reasonably be expected group in response to lead to an a Acquisition Proposal submitted by such person or group (other than an Acceptable Confidentiality Agreement and not withdrawn) if: (1) neither the Company nor its subsidiaries nor any of their respective Representatives shall have violated any of the restrictions set forth in accordance with this Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) 5.4 in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an such Acquisition Proposal. Except as expressly permitted by this Section 5.3; (2) the Board concludes in good faith, from and after consultation with its outside legal counsel, that such action is required in order for the date hereof until Board to comply with its fiduciary duties to the Acceptance TimeCompany's stockholders under applicable law; (3) (x) at least two (2) business days prior to furnishing any such nonpublic information to, oror entering into negotiations or discussions with, if earliersuch person or group, the termination Company gives Parent written notice of this Agreement in accordance with Article 7the identity of such person or group and of the Company's intention to furnish nonpublic information to, neither or enter into negotiations or discussions with, such person or group, and (y) the Company Board nor receives from such person or group an executed confidentiality agreement containing limitations on the use and disclosure of all nonpublic written and oral information furnished to such person or group by or on behalf of the Company which are no less favorable to the Company than the Confidentiality Agreement; and (4) contemporaneously with furnishing any committee thereof such nonpublic information to such person or group, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). In addition to the foregoing, the Company shall (i) provide Parent with at least forty-eight (48) hours prior written notice (or such lesser prior notice as provided to the members of the Board, but in no event less than eight hours) of a meeting of the Board at which the Board is reasonably expected to consider a Superior Offer and (ii) provide Parent with at least two (2) business days prior written notice of a meeting of the Board at which the Board is reasonably expected to recommend a Superior Offer to its stockholders and together with such notice a copy of any definitive documentation relating to such Superior Offer and such other documentation reflecting the terms of the Superior Offer as being considered by the Board. The terms of this Section 5.4 shall not prohibit the Company from taking any action necessary in order to comply with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, provided that neither the Company nor its Board shall, except as permitted by Section 5.4(c), propose to -42- withdraw, amend, change or modify its unanimous recommendation of this Agreement and the Merger, or to approve or recommend, or publicly propose to publicly approve or recommend, an Acquisition Proposal. The Company and its subsidiaries shall immediately cease any and all existing activities, negotiations or discussions with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into it is understood that any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any violation of the foregoing (any action restrictions set forth in the foregoing clauses (i), (ii), (iv) preceding two sentences by any officer or (v) director of the Company or any of its subsidiaries or any Representative of the Company or any of its subsidiaries shall be deemed to be a breach of this sentence (to Section 5.4 by the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Company.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3Hereafter until the Expiration Date, from and after to the date hereof, extent that the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any is prohibited from taking such Third Party to promptly return or destroy all confidential information concerning action under Section 5.03 of the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Merger Agreement in accordance with Article 7, the Company each Stockholder shall not, and nor shall cause its Subsidiaries not such Stockholder authorize or permit any general partner, officer, director, advisor or representative of such Stockholder (collectively, “Representatives”) or any Controlled Affiliates of such Stockholder to, and shall instruct in its Representatives not to on behalf of the Companyor their capacity as a stockholder, directly or indirectly, (Ai) solicit, initiate, solicit, knowingly encourage or take any other action to knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that constitutes, or would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3to, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the a Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Takeover Proposal, (ii) withdrawenter into any agreement, change letter of intent, memorandum of understanding or qualify, in a manner adverse other similar instrument with respect to Parent or Merger Sub, the any Company Board RecommendationTakeover Proposal, (iii) approve enter into, continue, conduct, engage or cause the Company to enter into otherwise participate in any merger agreementdiscussions or negotiations regarding, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating furnish to any Acquisition Proposal (in each casePerson any non-public information with respect to, an “Alternative Acquisition Agreement”)or for the purpose of encouraging or facilitating, any Company Takeover Proposal, (iv) fail solicit proxies or become a “participant” in a “solicitation” (as such terms are defined in Regulation 14A under the Exchange Act) with respect to include a Company Takeover Proposal (other than the Merger Agreement or a Superior Company Board Recommendation Proposal) or otherwise knowingly encourage or assist any party in taking or planning any action that would reasonably be expected to compete with, restrain or otherwise serve to interfere with or inhibit the Proxy Statement or timely consummation of the Merger in accordance with the terms of the Merger Agreement, (v) resolve initiate a stockholders’ vote or agree to do any action by consent of the foregoing Company’s stockholders with respect to a Company Takeover Proposal, or (vi) except by reason of this Agreement, become a member of a “group” (as such term is used in Section 13(d) of the Exchange Act) with respect to any voting securities of the Company that takes any action set forth in support of a Company Takeover Proposal (other than the foregoing clauses (iMerger Agreement or a Superior Company Proposal). Each Stockholder shall, (ii)and shall instruct its Representatives and Affiliates that such Stockholder can control to, (iv) immediately cease and cause to be terminated all existing discussions and negotiations, if any, with any Person conducted heretofore with respect to any Company Takeover Proposal. Nothing in this Section 4 or (v) otherwise in this Agreement shall in any way impede or prevent any Representative of this sentence (to a Stockholder that is a member of the extent related to Board of Directors of the foregoing clauses (i) or (ii) Company from exercising and performing his duties as a director of this sentence), a “Change of Board Recommendation”)the Company in accordance with applicable law.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3Without the prior written consent of Parent, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall will not, and shall cause its will not authorize or permit any of the Subsidiaries not or their officers, directors, employees, financial advisors, agents and other representatives ("REPRESENTATIVES") to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) initiate, solicit, initiate or encourage (including by way of furnishing non-public information) or take any other action to facilitate knowingly facilitate any inquiries or intentionally encourage the making of any offer or submission that proposal which constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); as defined herein) from any person or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change engage in any discussion or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement negotiations relating to any Acquisition Proposal (in each caseProposal; PROVIDED, an “Alternative Acquisition Agreement”)HOWEVER, that notwithstanding any other provision hereof, the Company may, (ivA) fail at any time prior to include the time the Company's shareholders shall have voted to approve this Agreement engage in discussions or negotiations with a third party (and may furnish such third party information concerning the Company Board Recommendation in and its business, properties and assets to such party) who (without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, by or with the Proxy Statement Company or (vthe Representatives after the date hereof) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i)makes an unsolicited bona fide written Acquisition Proposal if, (ii), (iv) or (v) of this sentence (and only to the extent related that, (1) the third party has first made an Acquisition Proposal that is financially superior, with respect to the foregoing clauses holders of the Company Common Stock generally, to the transactions contemplated by this Agreement and has demonstrated that the funds necessary for the Acquisition Proposal are reasonably likely to be available (ias determined in good faith in each case by the Company's Board of Directors after consultation with its financial advisors) or (ii) of this sentencesuch an Acquisition Proposal, a "SUPERIOR PROPOSAL"), and the Company's Board of Directors shall conclude in good faith, after considering applicable provisions of state law on the basis of advice of outside counsel, that such action is necessary for the Board of Directors to avoid breaching its fiduciary duties to the shareholders of the Company under applicable law, and (2) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, the Company receives from such person or entity an executed confidentiality agreement in substantially the same form as the Confidentiality Agreement, and (3) the Company shall have fully complied with this Section 4.14; and/or (B) comply with Rule 14e- 2 promulgated under the Exchange Act with regard to a “Change tender or exchange offer. As used herein, "ACQUISITION PROPOSAL" shall mean a proposal or offer for a tender or exchange offer, merger, consolidation or other business combination involving the Company or any Subsidiary of Board Recommendation”)the Company or any proposal to acquire in any manner a substantial equity interest in, or a substantial portion of the assets of, the Company or any Subsidiary thereof.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause each of its Subsidiaries and Representatives its and their officers and its and their officers’ direct reports and its and their directors to, and shall instruct and use its reasonable best efforts to cause its other Representatives to (xi) promptly immediately cease and cause to be terminated any solicitation, discussions or negotiations with any Third Party that may be ongoing Persons with respect to any Acquisition a Takeover Proposal that existed on or any proposal, inquiry or offer that would reasonably be expected prior to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7Agreement, (ii) during the Company shall Interim Period, not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, directly or indirectly (A) initiate, solicit, knowingly encourage or knowingly facilitate the submission of any inquiries regarding, or intentionally encourage the making of any proposal or offer or submission that constitutes constitutes, or would reasonably be expected to lead to an Acquisition to, a Takeover Proposal; , (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party third parties of the existence of the provisions contained in this Section 5.3), except thatengage in, the Company may ascertain facts from continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with any proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (C) approve, adopt, endorse, recommend or enter into any letter of intent, memorandum of understanding, agreement in response to an Acquisition principle, merger agreement, acquisition agreement or other similar Contract providing for a Takeover Proposal or with respect to any proposal, inquiry proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposalto, inquiry or offer that would reasonably be expected to lead to an Acquisition a Takeover Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or ) (E) reimburse or agree to reimburse the expenses any such letter of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreementintent, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each caseContract, an “Alternative Acquisition Agreement”)) or (D) take any action to exempt any Person (other than Parent and its Subsidiaries) from the restrictions on “business combinations” or any similar provision contained in applicable Takeover Laws or the Company Organizational Documents; (iii) subject to the directors’ fiduciary duties under applicable Law, waive or release any preexisting explicit or implicit standstill provisions or similar agreements and “anti-clubbing” or similar requirements contained in any other Contract, or (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing foregoing. The Company shall promptly (and in any action set forth in event within five (5) Business Days hereof) request each Person that has prior to the foregoing clauses (i), (ii), (iv) or (v) date of this sentence Agreement executed a confidentiality agreement in connection with its consideration of a proposed Takeover Proposal within the fifteen (15) month period immediately preceding the date of this Agreement to, in accordance with the terms of such agreement, return or destroy all confidential information furnished prior to the extent related to the foregoing clauses (i) or (ii) execution of this sentence), a “Change Agreement to or for the benefit of Board Recommendation”)such Person by or on behalf of the Company or any of its Subsidiaries.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from From and after the date hereofMay 9, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof 1999 until the Acceptance Time, or, if earlier, --------------- earlier of the Effective Time or the termination of this Agreement in accordance with Article 7its terms, the Company Xoom shall not, and nor shall cause it permit any of its Subsidiaries not to, and nor shall instruct it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, Xoom or any of its Representatives not Subsidiaries to, directly or indirectly, (i) take any action to on behalf solicit, initiate, encourage or knowingly facilitate any Material Transaction Proposal (as defined below) or the submission of a Material Transaction Proposal or (ii) enter into or participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, a Material Transaction Proposal; provided that, prior to obtaining the affirmative vote of the Companyholders -------- of a majority of the outstanding shares of common stock of Xoom to adopt the Xenon 2 Merger Agreement (the "Xoom Stockholder Approval" and, together with the ------------------------- Xenon 2 Stockholder Approval, the "Stockholder Approvals"), in response to an --------------------- unsolicited bona fide Takeover Proposal, Xoom may, to the extent that the Board ---- ---- of Directors of Xoom determines in good faith based on the advice of outside legal counsel that such action is required to comply with their fiduciary duties under applicable law, (A) initiate, solicit, knowingly facilitate or intentionally encourage furnish information with respect to Xoom and its Subsidiaries to the person making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; such Takeover Proposal and its representatives and discuss such information with such person and its representatives and (B) engage participate in negotiations regarding such Takeover Proposal. Xoom will promptly notify NBC of receipt of any request for information or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except thatMaterial Transaction Proposal, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose material terms and conditions of the Company Board informing itself about such Acquisition request or Material Transaction Proposal and the Third Party identity of the person making it; (C) make available any non-public such request or Material Transaction Proposal, and 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 providing any information regarding the Company or its Subsidiaries to any -------- Person (other than Parentor participating in negotiations with any Person, Xoom shall have received an executed confidentiality agreement. Xoom will immediately cease and Merger Sub cause to be terminated any existing activities, discussions and their respective Representatives acting in their capacities as such) in connection negotiations conducted heretofore with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating respect to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Material Transaction Proposal.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s 's Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “"Alternative Acquisition Agreement”"), (iv) fail to include the Company Board Recommendation in the Proxy Statement Schedule 14D-9 or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “"Change of Board Recommendation”").
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.35.02, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by of this Section 5.3, from and after the date hereof Agreement until the Acceptance Time, or, if earlier, earlier of the Closing Date or the termination of this Agreement in accordance with Article 7its terms, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct use its reasonable best efforts to cause its and its Subsidiaries’ respective Representatives not to on behalf of the Company(i) directly or indirectly solicit, (A) initiate, solicit, knowingly encourage or knowingly facilitate or intentionally encourage the making or submission of any inquiry, proposal, offer or submission indication of interest that constitutes constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal; , (Bii) directly or indirectly engage in, continue or otherwise participate in or knowingly facilitate any discussions or negotiations with respect thereto (regarding, or furnish to any other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available or its Representatives any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal for the purpose of encouraging or facilitating, any inquiry, proposal, inquiry offer or offer indication of interest that constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal; , (Diii) approve, endorse or recommend any Acquisition Proposal, (iv) enter into any letter Alternative Acquisition Agreement, (v) take any action to make the provisions of intent any “fair price,” “moratorium,” “control share acquisition,” “interested shareholder” or agreement in principle similar anti-takeover statute or regulation, or any Contract concerning applicable anti-takeover provision in the Company Organizational Documents, inapplicable to any transactions contemplated by an Acquisition Proposal Proposal, (vi) except as contemplated in Section 3.21 or Section 6.11, amend, modify or waive any provision of the Company Rights Plan or cause or permit any of the rights issued pursuant to the Company Rights Plan to be redeemed, cancelled or terminated or (vii) amend, modify, waive, release or fail to enforce any of the “standstill” restrictions in any confidentiality or non-disclosure or similar agreement entered into by the Company or any of its Subsidiaries since January 1, 2017. The Company shall, shall cause its Subsidiaries to and shall use reasonable best efforts to cause its and their respective Representatives to (A) immediately cease and cause to be terminated all discussions and negotiations with any Person or its Representatives that may have previously occurred or be ongoing with respect to any inquiry, proposal, inquiry offer or offer indication of interest that constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (iiB) withdraw, change promptly terminate all physical and electronic data room access previously granted to such Person or qualify, its Representatives and (C) request any Person that has executed a confidentiality or non-disclosure in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to connection with any Acquisition Proposal to promptly return or destroy all “Confidential Information” (or similar term, as defined in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the confidentiality agreement between the Company Board Recommendation in the Proxy Statement and such Person or (vits Affiliates) resolve provided to such Person or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)its Representatives.
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company Loxo Oncology shall not, and Loxo Oncology shall cause its Subsidiaries representatives not to, and shall instruct its Representatives not to on behalf of the Company, (Ai) initiate, directly or indirectly solicit, initiate or knowingly encourage or knowingly facilitate (including by way of providing information) any inquiries, proposals, or intentionally encourage offers or the making of any submission or announcement of any inquiry, proposal, or offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; any Company Takeover Proposal (Bas defined below) or (ii) directly or indirectly engage in, enter into or participate in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)person regarding, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries furnish to any Person (person any information or afford access to the business, properties, assets, books or records of Loxo Oncology to, or take any other than Parentaction to assist or knowingly facilitate or knowingly encourage any effort by any person, and Merger Sub and their respective Representatives acting in their capacities as such) each case in connection with or in response to an Acquisition Proposal any inquiry, offer or any proposalproposal that constitutes, inquiry or offer that would reasonably be expected to lead to, any Company Takeover Proposal (other than, solely in response to an Acquisition Proposal; inquiry that did not result from or arise in connection with a material breach of Section 5.02(a) of the Merger Agreement), to refer the inquiring person to Section 5.02 of the Merger Agreement and to limit its conversation or other communication exclusively to such referral or to clarify the terms thereof). Loxo Oncology shall, and shall cause its directors and officers to, and shall use its reasonable best efforts to cause its representatives to, immediately (Di) enter into cease all solicitations, discussions and negotiations regarding any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposalinquiry, inquiry proposal or offer pending on January 5, 2019 that would constitutes, or could reasonably be expected to lead to, a Company Takeover Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any person within the last six months for the purposes of evaluating a possible Company Takeover Proposal and (iii) terminate access to any physical or electronic data rooms relating to a possible Company Takeover Proposal. However, at any time prior to the Offer Closing Time, in response to a Company Takeover Proposal that did not result from or arise in connection with a material breach of Section 5.02(a) of the Merger Agreement, in the event that the Loxo Oncology Board determines, in good faith, after consultation with outside counsel and a financial advisor, that such Company Takeover Proposal constitutes or could reasonably be expected to lead to an Acquisition a Superior Company Proposal (other than a “Qualifying Company Takeover Proposal”), Loxo Oncology may (A) furnish Table of Contents information with respect to Loxo Oncology to the person or group of persons making such Qualifying Company Takeover Proposal and its or their representatives pursuant to an Acceptable Confidentiality Agreement (as defined below) so long as Loxo Oncology concurrently or promptly thereafter provides Lilly, in accordance with Section 5.3(b)the terms of the Non-Disclosure Agreement, any material non-public information with respect to Loxo Oncology furnished to such other person or group of persons that was not previously furnished to Lilly, and (B) participate in discussions or negotiations with such person or group of persons and its or their representatives regarding such Qualifying Company Takeover Proposal (including soliciting the making of a revised Qualifying Company Takeover Proposal); or provided that Loxo Oncology may only take the actions described in clause (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (ivA) or (vB) of this sentence (above, if the Loxo Oncology Board determines, in good faith, after consultation with outside counsel, that the failure to take any such action would be inconsistent with its fiduciary duties under applicable law. Loxo Oncology shall not, and shall cause its representatives not to, release any person from, or waive, amend or modify any provision of, or grant permission under or fail to enforce, any standstill provision in any agreement to which Loxo Oncology is a party; provided that, if the Loxo Oncology Board determines in good faith, after consultation with its outside counsel that the failure to take such action would be inconsistent with its fiduciary duties under applicable law, Loxo Oncology may waive any such standstill provision solely to the extent related necessary to permit the applicable person (if such person has not been solicited in breach of Section 5.02 of the Merger Agreement) to make, on a confidential basis to the foregoing clauses (i) or (ii) of this sentence)Loxo Oncology Board, a “Change Company Takeover Proposal, conditioned upon such person agreeing that Loxo Oncology shall not be prohibited from providing any information to Lilly (including regarding any such Company Takeover Proposal) in accordance with, and otherwise complying with, Section 5.02 of Board Recommendation”)the Merger Agreement.
Appears in 1 contract
Samples: Lilly Eli & Co
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after the date hereofThe Company will not, the Company shall, and shall will cause its Subsidiaries and the Company's and its Subsidiaries' respective officers, directors and non-employee Representatives not to, and the Company will use commercially reasonable efforts to cause its and its Subsidiaries' respective employees not to, take the following actions on behalf of the Company and its Subsidiaries: (xi) promptly initiate, solicit, knowingly facilitate (including by way of furnishing confidential information) or knowingly encourage the submission of a proposal that constitutes, or any inquiry or proposal that could reasonably be expected to lead to, any Alternative Acquisition Proposal made by any Person other than Parent and its Subsidiaries and their respective Representatives (any such Person, a "Third Party"); (ii) enter into with any Third Party any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding (other than any confidentiality agreement of the type referred to in clause "(3)" of the proviso to this sentence below) that contemplates an Alternative Acquisition (as defined in Section 5.2(f)(i)) by such Third Party (or by any Affiliate of such Third Party) or that requires the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; or (iii) continue or otherwise engage in any negotiations with a Third Party or a Third Party's Representatives concerning, or provide any confidential information regarding the Company to any Third Party or a Third Party's Representatives with respect to, an Alternative Acquisition Proposal made by such Third Party; provided, however, that, notwithstanding anything to the contrary contained in this Agreement, prior to the Acceptance Time, the Company and its Subsidiaries and the respective Representatives of the Company and its Subsidiaries may engage in any such negotiations and provide any such information as described in clause "(iii)" of this sentence in response to an Alternative Acquisition Proposal from a Third Party that did not result from a breach of clause "(i)" of this sentence if (1) such Alternative Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and the Company's Board of Directors determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that the failure to engage in any such negotiations with or provide any such information to such Third Party or such Third Party's Representatives would be reasonably likely to result in a breach by the Company's Board of Directors of its fiduciary duties to the Company's stockholders, (2) at least 24 hours prior to initiating any negotiations with such Third Party or such Third Party's Representatives concerning, or initially providing any confidential information regarding the Company to such Third Party or such Third Party's Representatives in response to, such Alternative Acquisition Proposal, the Company gives Parent written notice of the identity of such Third Party and of the Company's intention to engage in negotiations with, or furnish confidential information to, such Third Party or such Third Party's Representatives, (3) prior to providing any confidential information regarding the Company to such Third Party or such Third Party's Representatives in response to such Alternative Acquisition Proposal, the Company receives from such Third Party an executed confidentiality agreement containing limitations on the use and disclosure of confidential information furnished to such Third Party and such Third Party's Representatives by the Company that are no less favorable to the Company than the provisions of the Confidentiality Agreement (and provided that such confidentiality agreement with such Third Party shall not contain restrictions that would prevent the Company from complying with its obligations to provide required disclosure to Parent under this Section 5.2), and (4) prior to or contemporaneously with providing any confidential information (whether initially or pursuant to subsequent deliveries of confidential information) to such Third Party or such Third Party's Representatives, the Company furnishes or otherwise makes the same such confidential information available to Parent (to the extent such confidential information has not been previously furnished or otherwise made available to Parent). Upon the execution and delivery of this Agreement, the Company will immediately cease and cause to be terminated any discussions or existing negotiations with any Third Party that may be ongoing with respect relating to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Alternative Acquisition Proposal, and (y) request any such Third Party . Notwithstanding anything to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by contrary contained in this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7Agreement, the Company shall notwill not be responsible for, and shall cause will not be deemed to have breached this Agreement by virtue of, any actions by its Subsidiaries or its Subsidiaries' employees that have not to, and shall instruct its Representatives not to on behalf of been authorized by the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)'s senior management.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Schneider Electric Sa)
No Solicitation. (a) Except as expressly permitted by this Section 5.3Kraft will not, from and after will cause the date hereofKraft Subsidiaries not to, the Company shallwill cause each Kraft Transaction Representative not to, and shall will use its reasonable best efforts to cause its Subsidiaries and Representatives each External Kraft Transaction Representative not to, and on becoming aware of it will use its best efforts to stop any such Person from continuing to, directly or indirectly, (xi) promptly solicit, initiate or knowingly facilitate any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, a Takeover Proposal, (ii) engage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any non- public information in connection with, or for the purpose of facilitating, any inquiries, proposals or offers that constitute, or that would reasonably be expected to lead to, a Takeover Proposal or (iii) execute or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option or other similar agreement (other than an Acceptable Confidentiality Agreement) regarding, or that is intended to result in, or would reasonably be expected to lead to, any Takeover Proposal (an “Acquisition Agreement”). Kraft will, will cause the Kraft Subsidiaries to, will cause each Kraft Transaction Representative to, and will use its reasonable best efforts to cause each External Kraft 44 Transaction Representative, to immediately cease and cause to be terminated any solicitation, discussions or negotiations with any Third Party Persons that may be ongoing with respect to any Acquisition Proposal a Takeover Proposal, or any proposalinquiry, inquiry proposal or offer that would reasonably be expected to lead to an Acquisition a Takeover Proposal, and (y) request any such Third Party to promptly the prompt return or destroy destruction of all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries previously furnished to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition a Takeover Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating immediately terminate all physical and electronic dataroom access previously granted to any Acquisition Proposal (in each casesuch Person, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement its Subsidiaries or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)its Representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitation. (a) Except as expressly permitted by this Section 5.35.3(b), from and after the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, earlier to occur of the termination of this Agreement in accordance with pursuant to Article 7VII and the consummation of the Closing, the Company shall will not, and shall will cause its Subsidiaries Representatives not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) solicit, initiate, solicitpropose or knowingly induce the making, submission or announcement of, or knowingly encourage, facilitate or intentionally encourage the making of assist, any offer inquiry or submission proposal that constitutes constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal; (Bii) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing furnish to any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding relating to the Company or its Subsidiaries or afford to any Person (Third Party access to the properties, assets, books, records or other than Parentnon-public information, and Merger Sub and their respective Representatives acting or to any personnel, of the Company or its Subsidiaries, in their capacities as such) in connection any such case with the intent to induce the making, submission or in response announcement of, or to knowingly encourage, facilitate or assist an Acquisition Proposal or any proposal, inquiry inquiries or the making of any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal; or (Diii) enter into participate or engage in discussions, communications or negotiations with any letter of intent or agreement in principle or any Contract concerning any Third Party with respect to an Acquisition Proposal or any proposal, inquiry or offer proposal that constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal (other than an Acceptable Confidentiality Proposal. From the date hereof until the earlier to occur of the termination of this Agreement in accordance with Section 5.3(b)); pursuant to Article VII and the consummation of the Closing, the Company and its Subsidiaries will be required to enforce, and will not be permitted to waive, terminate or (E) reimburse or agree to reimburse the expenses modify, any provision of any other Person standstill or confidentiality agreement that prohibits or purports to prohibit a proposal being made to the Company Board (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquirycommittee thereof) unless the Company Board or the Company Special Committee has determined in good faith, discussionafter consultation with its outside counsel, offer or request that failure to take such action would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance be inconsistent with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)its fiduciary duties under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Consolidated Communications Holdings, Inc.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3Each party agrees, from on behalf of itself and after the date hereofeach of its Subsidiaries, the Company shallthat it will not authorize or permit any officer, and shall cause director, employee, investment banker, financial consultant, attorney, accountant or other representative of it or any of its Subsidiaries and Representatives toSubsidiaries, (x) promptly cease and cause directly or indirectly, to be terminated any discussions or negotiations initiate contact with any Third Party that may be ongoing with respect person or entity in an effort to solicit, initiate or encourage any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition "Takeover Proposal, and " (y) request any as such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiariesterm is defined below). Except as expressly permitted by this Section 5.3the fiduciary duties of its Board of Directors may otherwise require (as determined in good faith after consultation with legal counsel), from and after the date hereof until the Acceptance Timeeach party agrees that it will not authorize or permit any officer, ordirector, if earlieremployee, the termination investment banker, financial consultant, attorney, accountant or other representative of this Agreement in accordance with Article 7it or any of its Subsidiaries, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (A) initiateto cooperate with, solicitor furnish or cause to be furnished any non-public information concerning its business, knowingly facilitate properties or intentionally encourage the making of assets to, any offer person or submission that constitutes or would reasonably be expected to lead to an Acquisition entity in connection with any Takeover Proposal; (B) engage in to negotiate any Takeover Proposal with any person or knowingly facilitate any discussions entity; or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any agreement, letter of intent or agreement in principle as to any Takeover Proposal. Each party agrees that it shall promptly give written notice to the other upon becoming aware of any Takeover Proposal, such notice to contain, at a minimum, the identity of the persons submitting the Takeover Proposal, a copy of any written inquiry or other communication, the terms of any Contract concerning Takeover Proposal, any Acquisition Proposal information requested or discussions sought to be initiated and the status of any requests, negotiations or expressions of interest. As used in this Agreement, "Takeover Proposal" shall mean any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality as contemplated by this Agreement in accordance with or Section 5.3(b)); 3.2 of the Avondale Disclosure Schedule, for a merger or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal business combination involving either party or any inquiry, discussion, offer of their respective financial institution Subsidiaries or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after for the date hereof until the Acceptance Time, or, if earlier, the termination acquisition of this Agreement a 10% or greater equity interest in accordance with Article 7, neither the Company Board nor either party or any committee thereof shall (i) approve or recommendof their respective Subsidiaries, or publicly propose to approve for the acquisition of a substantial portion of the assets of either party or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)their respective Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Avondale Financial Corp)
No Solicitation. (a) Except as expressly permitted by During the period (the “Go-Shop Period”) commencing on the date of this Section 5.3, from Agreement and continuing until 11:59 p.m. (Israeli Time) on the thirtieth (30th) day after the date hereofhereof (such 30-day period to be tolled during the period from April 11, 2017 through April 17, 2017) (the day on which the Go-Shop Period ends, the “No-Shop Period Start Date”), the Company, the Company Related Parties or Representatives of any of the foregoing shall have the right to (i) initiate, solicit and encourage any inquiry or the making of any proposal or offer that could constitute a Company Acquisition Proposal, including by furnishing information with respect to the Company and the Subsidiaries of the Company to any person pursuant to an Acceptable Confidentiality Agreement; provided that, the Company shall, to the extent not previously provided to Parent or Merger Sub, provide or make available to Parent or Merger Sub any material non-public information concerning the Company or any Subsidiary of the Company provided or made available to any person which was not previously provided to Parent or Merger Sub prior to (or contemporaneously with) the time it is provided to such person; provided, further, the Company, the Company Related Parties and their respective Representatives shall cause its Subsidiaries and Representatives towithhold such portions of documents or information, (x) promptly cease and cause or provide pursuant to customary “clean-room” or other appropriate procedures, to the extent relating to any pricing or other matters that are highly sensitive or competitive in nature if management of the Company reasonably determines such information could reasonably be likely to be terminated materially harmful to the operation of the Company and its Subsidiaries, and (ii) participate in any discussions or negotiations with any Third Party that may be ongoing persons or group of persons with respect to any Acquisition Proposal or any proposal, inquiry proposal or offer that would reasonably be expected to could lead to an a Company Acquisition Proposal and cooperate with or assist or participate in or facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt to make any Company Acquisition Proposals. Without in any way limiting the exercise by the Company Board of its fiduciary duties, including pursuant to Section 5.4(e), during the Go-Shop Period, the Company Board and the Company shall not publicly comment on any Company Acquisition Proposal. No later than forty-eight (48) hours after the No-Shop Period Start Date, the Company shall notify Parent in writing of the identity of each Excluded Party, together with (x) a copy of the most recent Company Acquisition Proposal made in writing and any other written terms or proposals provided (including financing commitments) made by such Excluded Party and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf a written summary of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making material terms of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the such Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting not made in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)writing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Syneron Medical Ltd.)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from RFH and its Subsidiaries shall not, and RFH and its Subsidiaries shall use their best efforts to cause their respective representatives not to, initiate, solicit or knowingly encourage or 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 that, prior to the time that RFH’s shareholders’ approval of the Merger (the “RFH Shareholder Approval”) is obtained but not after, (1) RFH receives, after the date hereofexecution of this Agreement, the Company shallan unsolicited bona fide Acquisition Proposal from a person other than 1st Constitution, and shall cause (2) RFH’s Board of Directors concludes in good faith (A) that, after consulting with its financial advisor, such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and (B) that, after considering the advice of outside counsel, failure to take such actions would be inconsistent with its fiduciary duties to RFH’s shareholders under applicable Law, RFH may, and may permit its Subsidiaries and Representatives its and its Subsidiaries’ representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between 1st Constitution and RFH dated December 20, 2012 (xthe “Confidentiality Agreement”) promptly and any non-public information provided to any person given access to nonpublic information shall have previously been provided to 1st Constitution or shall be provided to 1st Constitution prior to or concurrently with the time it is provided to such person. RFH will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement with any Third Party that may be ongoing persons other than 1st Constitution with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in not terminate, waive, amend, release or knowingly facilitate modify any discussions provision of any confidentiality or negotiations with respect thereto (other than informing standstill agreement relating to any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose to which it or any of the Company Board informing itself about such Acquisition Proposal its Affiliates or representatives is a party and the Third Party making it; (C) make available use its commercially reasonable efforts to enforce any non-public information regarding the Company confidentiality or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (1st Constitution Bancorp)
No Solicitation. (a) Except as expressly permitted by Notwithstanding anything to the contrary set forth in this Section 5.3Agreement, from and after during the period beginning on the date hereofhereof and continuing until 11:59 p.m., Eastern time on May 12, 2022 (the “No-Shop Period Start Date”), the Company shalland its Representatives shall have the right to: (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, could constitute or is reasonably expected to lead to, a Company Takeover Proposal; (ii) subject to the entry into, and shall cause solely in accordance with, an Acceptable Confidentiality Agreement, furnish to any Third Party (and its Representatives, prospective debt and equity financing sources and/or their respective Representatives), any non-public or other information relating to the Company and its Subsidiaries or afford to any such Third Party (and its Representatives, prospective debt and equity financing sources and/or their respective Representatives) access to the business, properties, assets, books, records or other non-public or other information, or to any personnel, of the Company and its Subsidiaries (provided, however, that the Company will substantially concurrently provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such Third Party, which was not previously provided to Parent, and the Company and its Representatives toshall not provide any competitively sensitive non-public information to any Third Party who is or whose Affiliates are a competitor of the Company (as determined in good faith by the Company), except in accordance with customary “clean room” or similar procedures); (xiii) promptly cease and cause to be terminated any continue, enter into, maintain, participate or engage in discussions or negotiations with any Third Party that may be ongoing (and its Representatives, prospective debt and equity financing sources and/or their respective Representatives) with respect to any Acquisition a Company Takeover Proposal (or any proposal, proposal or inquiry that could constitute or offer that would is reasonably be expected to lead to an Acquisition a Company Takeover Proposal); and (iv) cooperate with or assist or participate in or facilitate any such proposals, inquiries, offers, discussions or negotiations or any effort or attempt to make any Company Takeover Proposal, and (y) request including that the Company may grant a limited waiver under any “standstill provision” or similar obligation of any Third Party with respect to the Company or any of its Subsidiaries solely to allow such Third Party to promptly return submit or destroy all amend a Company Takeover Proposal on a confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not basis to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”thereof).
Appears in 1 contract
No Solicitation. (aSubject to Section 6(b) Except as expressly permitted by this Section 5.3, from and after the date hereof, prior to the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlierTermination Date, the termination of this Agreement in accordance with Article 7, the Company Shareholder shall not, and shall cause its Subsidiaries Affiliates and subsidiaries acting on its behalf not to and shall use its reasonable best efforts to cause its and their respective Representatives acting on its or their respective behalf not to, and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) initiate, solicit, solicit or knowingly encourage or knowingly facilitate any inquiries or intentionally encourage requests for information with respect to, or the making of of, any inquiry regarding, or any proposal or offer or submission that constitutes any, or would reasonably be expected to result in or lead to an Acquisition to, Alternative Proposal; , (Bii) engage in, continue or otherwise participate in any negotiations concerning, or knowingly facilitate provide access to its properties, books and records or any discussions confidential information or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3)data to, except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries relating to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, offer, inquiry or offer request for information that constitutes any, or would reasonably be expected to result in or lead to an Acquisition to, Alternative Proposal; , (Diii) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposalapprove, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve endorse or recommend, or propose publicly propose to approve approve, endorse or recommend, any Acquisition Alternative Proposal, (iiiv) withdrawexecute or enter into, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreementletter of intent, memorandum of understanding, agreement in principle, investment confidentiality agreement, letter of intent merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Alternative Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing foregoing. The Shareholder agrees that immediately following the execution of this Agreement it shall, and shall cause each of its Affiliates and subsidiaries and shall use its reasonable best efforts to cause its and their Representatives acting on its or their respective behalf to, cease any solicitations or negotiations with any Person (other than the Parties and their respective Representatives acting on its or their respective behalf) conducted heretofore in connection with an Alternative Proposal or any action set forth inquiry or request for information that would reasonably be expected to lead to, or result in, an Alternative Proposal. The Shareholder shall promptly notify (and in any event within three Business Days), in writing, Acquiror of the receipt by the Shareholder in such capacity of any written proposal or written offer that constitutes an Alternative Proposal. “Alternative Proposal” has the meaning ascribed to such term in the foregoing clauses (i)Merger Agreement, and means any offer or proposal involving any third party to, (ii)A) issue, (iv) sell or otherwise transfer any interest in the Company or any of the Company Subsidiaries or all or any material portion of its or their assets, or (vB) enter into any definitive agreement with respect to, or otherwise effect, any Other Sale (as defined in the Amended and Restated Articles of Incorporation of the Company, filed on August 27, 2020) other than with Buyer or any of its Affiliates, recapitalization, refinancing, merger or other similar transaction involving the Company or the Company Subsidiaries. For the avoidance of doubt, any Transfer or purported Transfer of Covered Shares that is permitted under the terms of Section 6(c) shall not constitute an Alternative Proposal for the purposes of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”Section 6(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Churchill Capital Corp II)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from KBI and after the date hereof, the Company Kenwood Savings agree that neither they nor any of their respective officers or directors shall, and that they shall direct and use their reasonable best efforts to cause its Subsidiaries each of their employees, agents and Representatives representatives not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to a merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of all or substantially all of the assets of KBI or more than 9.9% of the outstanding equity securities of KBI or Kenwood Savings (xany such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). KBI and Kenwood Savings further agree that neither KBI nor Kenwood Savings nor any of their respective officers and directors shall, and that they shall direct and use their reasonable best efforts to cause their employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent KBI or Kenwood Savings from (A) promptly complying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal if KBI receives from the person so requesting such information an executed confidentiality agreement; (C) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the Stockholders of KBI, if and only to the extent that, (i) in each such case referred to in clause (B), (C) or (D) above, the KBI Board of Directors determines in good 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 (ii) in the case referred to in clause (D) above, the KBI Board of Directors determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to KBI's stockholders from a financial point of view than the Merger. KBI and Kenwood Savings agree that they will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Third Party that may be ongoing parties conducted heretofore with respect to any Acquisition Proposal Proposals. KBI and Kenwood Savings agree that they will notify Bancorp immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead to an Acquisition Proposal; (B) engage in or knowingly facilitate any discussions or negotiations with respect thereto (other than informing any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the Company are sought to be initiated or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommendcontinued with, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)its representatives.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Peoples Community Bancorp Inc /De/)
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from and after From the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by of this Section 5.3, from and after the date hereof Agreement until the Acceptance Time, Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7its terms, the Company except as set forth below, CHC shall not, shall cause each CHC Company, and shall use commercially reasonable efforts to cause its Subsidiaries each officer, director, employee or Affiliate of CHC or of any CHC Company not to, and shall instruct its Representatives not to on behalf authorize or permit any Representative of the CHC or any CHC Company, directly or indirectly, to (Ai) solicit, initiate, solicitencourage or take any other action designed to solicit or which may have the effect of soliciting or indicating an interest in a solicitation of, the submission of, any Takeover Proposal, (ii) participate or engage in any written correspondence, discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, or knowingly take any action to facilitate any inquiries or intentionally encourage the making of any offer proposal that constitutes, or submission that constitutes or would could reasonably be expected to lead to, any Takeover Proposal or (iii) unless the CHC board of directors (“CHC Board”) determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to take such action would be reasonably likely to violate the fiduciary duties of the CHC Board to CHC’s stockholders under applicable Law and solely to the extent necessary to permit such third party to submit an Acquisition unsolicited Takeover Proposal that is, or is reasonably likely to be, a Superior Proposal; (B) engage in , to the CHC Board, release any third party from any confidentiality or knowingly facilitate standstill agreement to which CHC is a party, or fail to reasonably enforce or grant any material waiver, request or consent to any Takeover Proposal under, any such agreement. CHC shall, and shall cause each CHC Company and CHC’s and each such CHC Company’s respective Representatives to, immediately cease and terminate any existing solicitation, encouragement, activity, discussions or negotiations with respect thereto (other than informing heretofore conducted by CHC, any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal for the purpose of the Company Board informing itself about such Acquisition Proposal and the Third Party making it; (C) make available any non-public information regarding the CHC Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response respect to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Takeover Proposal. Except as expressly permitted by this Section 5.3, from and CHC shall promptly after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in instruct each Person that has heretofore executed a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, agreement in principle, investment agreement, letter of intent or other similar confidentiality agreement relating to any Acquisition Takeover Proposal (in each caseto promptly return or destroy all information, an “Alternative Acquisition Agreement”)documents and materials relating to a Takeover Proposal or to CHC or its businesses, (iv) fail to include the Company Board Recommendation in the Proxy Statement operations or (v) resolve affairs heretofore furnished by CHC or agree to do any of its Representatives to such Person or any of its Representatives in accordance with the foregoing (terms of such confidentiality agreement. It is understood that any action set forth in violation of the foregoing clauses (i), (ii), (iv) or (v) restrictions of this sentence (to the extent related to the foregoing clauses (iSection 8.6(a) in any material respect by any Representative of CHC or (ii) any CHC Company shall be deemed a material breach of this sentence), a “Change of Board Recommendation”)Agreement by CHC.
Appears in 1 contract
Samples: Merger and Share Exchange Agreement (Coffee Holding Co Inc)
No Solicitation. Until the earlier of (a) Except as expressly permitted by this Section 5.3the Effective Time, from and after or (b) the date hereofof termination of this Agreement pursuant to the provisions of Section 12.1, the Company shallshall not, and shall cause neither authorize or permit its Subsidiaries directors, officers, employees, shareholders, affiliates, representatives, agents and Representatives advisors (collectively, “Representatives”) to, directly or indirectly, (xi) promptly cease and cause to be terminated solicit, initiate, seek, entertain, encourage or support any inquiry, proposal or offer from any Person other than Parent regarding any Competing Transaction, (ii) participate in any discussions or negotiations regarding any Competing Transaction with any Third Party Person other than Parent, or (iii) furnish to any person other than Parent any information for the purposes of formulating any inquiry, proposal or offer regarding a Competing Transaction. The preceding sentence shall not prohibit the Company from providing to its business affiliates, customers and potential customers information of the nature typically provided in connection with potential commercial transactions in the ordinary course of business consistent with past practice to the extent that may be ongoing it is reasonably expected that the provision of such information will not lead to a Competing Transaction or any inquiry, proposal or offer with respect to thereto. The Company agrees that any Acquisition Proposal discussions or negotiations regarding any proposal, inquiry Competing Transaction (other than discussions or offer that would reasonably be expected to lead to an Acquisition Proposal, and (ynegotiations with Parent) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except in progress as expressly permitted by this Section 5.3, from and after of the date hereof until will be suspended during such period, and that Parent will not accept or enter into any agreement, arrangement or understanding regarding any Competing Transaction with any party other than Parent during such period. If the Acceptance TimeCompany or any of the Company’s affiliates shall receive, or, if earlier, prior to the Effective Time or the termination of this Agreement in accordance with Article 7Section 12.1, any offer, proposal, or request, directly or indirectly, of a Competing Transaction, or any request for disclosure or access as referenced in clause (iii) above, the Company shall notimmediately (x) suspend any discussions with such offeror or party with regard to such offers, proposals, or requests and (y) notify Parent thereof, including information as to the identity of the offeror or the party making any such offer or 45 proposal and the specific terms of such offer or proposal, as the case may be, and such other information related thereto as Parent may reasonably request. The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 7.2 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall cause its Subsidiaries not to, and shall instruct its Representatives not to on behalf of the Company, (A) initiate, solicit, knowingly facilitate or intentionally encourage the making of any offer or submission that constitutes or would reasonably be expected to lead entitled to an Acquisition Proposal; (B) engage in immediate injunction or knowingly facilitate injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any discussions bond or negotiations with respect thereto (other than informing any Third Party of the existence security, to prevent breaches of the provisions contained in of this Section 5.3)7.2 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, except thatthis being in addition to any other remedy to which Parent may be entitled at law or in equity. Without limiting the foregoing, it is understood that any violation of the Company may ascertain facts from restrictions set forth above by any Person making an Acquisition Proposal for the purpose officer, director, agent, representative or affiliate of the Company Board informing itself about such Acquisition Proposal and shall be deemed to be a breach of this Agreement by the Third Party making it; (C) make available any non-public information regarding Company. If this Agreement is terminated as a result of a breach by the Company or its Subsidiaries to any Person (other than Parent, and Merger Sub and their respective Representatives acting in their capacities as such) in connection with or in response to an Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal; (D) enter into any letter Stockholders of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (ii) withdraw, change or qualify, in a manner adverse to Parent or Merger Sub7.2, the Company Board Recommendation, (iii) approve or cause the Company will pay to enter into any merger agreement, acquisition agreement, memorandum Parent Parent’s documented out of understanding, agreement in principle, investment agreement, letter of intent or other similar agreement relating to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement or (v) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i), (ii), (iv) or (v) of this sentence (to the extent pocket costs and expenses related to the foregoing clauses (i) or (ii) of transactions contemplated by this sentence), a “Change of Board Recommendation”).Agreement,
Appears in 1 contract
No Solicitation. (a) Except as expressly permitted by this Section 5.3, from During the period beginning on the Effective Date and after ending on the date hereof, the Company shall, and shall cause its Subsidiaries and Representatives to, (x) promptly cease and cause to be terminated any discussions or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal, and (y) request any such Third Party to promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, earlier of the termination of this Agreement pursuant to Section 8.1 or the Closing Date, except with regard to complying with rights of first refusal provisions contained within agreements with Manufacturer in accordance with Article 7effect as of the Effective Date, Sellers and the Company Principal shall not, and shall cause its Subsidiaries their Affiliates and their respective directors, officers, managers, and members not to (and use commercially reasonable efforts to cause their respective agents, consultants, advisors and other representatives not to), and shall instruct its Representatives not to on behalf of the Companydirectly or indirectly, (Ai) solicit, initiate, solicitfacilitate, knowingly facilitate encourage (including by way of furnishing non-public information) any proposals or intentionally encourage the making of offers from any offer or submission Person that constitutes constitute, or would reasonably be expected to lead to, an Alternative Transaction Proposal, (ii) except to an Acquisition Proposal; (B) the extent necessary to comply with obligations under its agreements existing as of the Effective Date with any Manufacturer, engage in or knowingly facilitate otherwise participate in any discussions or negotiations with respect thereto regarding, furnish to any other Person (other than informing Purchaser or its Representatives) any Third Party of the existence of the provisions contained in this Section 5.3), except that, the Company may ascertain facts from any Person making an Acquisition Proposal information with respect to or for the purpose of encouraging or facilitating, or otherwise cooperate in any way, assist or participate in or facilitate any effort or attempt by any other Person to make, an Alternative Transaction Proposal, or (iii) except in connection with the Company Board informing itself about exercise by a Manufacturer of any right of first refusal under its agreements with such Acquisition Proposal Manufacturer existing as of the Effective Date, enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement with respect to an Alternative Transaction Proposal. Upon execution of this Agreement, Sellers and the Third Party making it; (C) make available any non-public information regarding the Company or its Subsidiaries to any Person (other than ParentPrincipal shall, and Merger Sub shall cause their Affiliates and their respective Representatives acting in directors, officers, managers, and members (and use commercially reasonable efforts to cause their capacities as suchrespective agents, consultants, advisors and other representatives) in connection to, (A) immediately cease and cause to be terminated all discussions or negotiations with or in response any Person conducted prior to the Effective Date with respect to an Acquisition Alternative Transaction Proposal or any proposal, inquiry or offer proposal that would reasonably be expected to result in or lead to an Acquisition Proposal; (D) enter into any letter of intent or agreement in principle or any Contract concerning any Acquisition Proposal or any proposal, inquiry or offer that would reasonably be expected to lead to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.3(b)); or (E) reimburse or agree to reimburse the expenses of any other Person (other than the Company’s Representatives) in connection with an Acquisition Proposal or any inquiry, discussion, offer or request that would reasonably be expected to lead to an Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Acceptance Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) approve or recommend, or publicly propose to approve or recommend, any Acquisition Alternative Transaction Proposal, (iiB) withdrawpromptly request each Person, change or qualifyif any, in that has executed a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) approve or cause the Company to enter into any merger agreement, acquisition agreement, memorandum of understanding, confidentiality agreement in principle, investment agreement, letter respect of intent an Alternative Transaction Proposal to return or other similar agreement relating destroy all information heretofore furnished to such Person or its representatives by or on behalf of Sellers or the Principal and (C) promptly terminate all physical and electronic data access to any Acquisition Proposal (in each case, an “Alternative Acquisition Agreement”), (iv) fail to include the Company Board Recommendation in the Proxy Statement data room created by any Seller or (v) resolve or agree to do any of the foregoing (its Affiliates previously granted to any action set forth in the foregoing clauses (i), (ii), (iv) such Person or (v) of this sentence (to the extent related to the foregoing clauses (i) or (ii) of this sentence), a “Change of Board Recommendation”)its representatives.
Appears in 1 contract
Samples: Lease With Purchase Option (Asbury Automotive Group Inc)
