No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and 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 (i) 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 2 contracts
Samples: Exchange Agreement (Qorus Com Inc), Exchange Agreement (Qorus Com Inc)
No Solicitation. Other than with respect to From and after the Transactiondate hereof until the termination of this Agreement, each of the Affiliated Companies and Qorus agrees that neither it LIFC, nor any LIFC Subsidiary, nor any of its their respective officers, directors, managersemployees, representatives, agents or managing members shallaffiliates (including, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including without limitation, any investment banker, attorney or accountant retained by it) not toLIFC or any of its Subsidiaries), will, directly or indirectly, initiate, solicit, solicit or encourage (including by way of furnishing non-public information or otherwise facilitate assistance) any inquiries or the making or implementation of any proposal that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with respect any person or entity in furtherance of such inquiries, or authorize or permit any of its officers, directors, or employees or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by any of its subsidiaries to take any such action, and LIFC shall notify NYB orally (iwithin one business day) and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which it or any of its Subsidiaries or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other representative may receive relating to any of such matters, provided, however, that nothing contained in this Section 6.10 shall prohibit the Board of Directors of LIFC from furnishing information to, or entering into discussions or negotiations, with any person or entity that makes an unsolicited written proposal to acquire LIFC pursuant to a merger, reorganizationconsolidation, share exchange, consolidation or similar transaction involving itbusiness combination, (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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposaltransaction, if, and only to the extent that in each such case referred to in clause (B)that, (CA) or (D) above, Qorus' board the Board of directors determines in good faithDirectors of LIFC determines, after consultation with outside legal counsel and after considering the advice of its independent financial advisor, that such action proposal is necessary superior to act the Merger from a financial point-of-view to LIFC's stockholders, (B) the Board of Directors of LIFC, after consultation with and after considering the advice of independent legal counsel, determines in a manner consistent good faith that the failure to furnish information to or enter into discussions with such person would be inconsistent with the directors' Board of Directors of LIFC's fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making law; (C) such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal was not solicited by LIFC and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus did not otherwise result from a financial point breach of view this Section 6.10 by LIFC (any such more favorable Acquisition Proposal proposal that satisfies (A), (B) and (C) being referred to herein as a "Superior Proposal"); (D) and determines LIFC promptly notifies NYB of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with LIFC or any of its representatives indicating, in good faith that connection with such Superior Proposal is reasonably capable notice, the name of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal such person and the material terms and conditions of any inquiries, proposals or offers, and receives from such person making or entity an executed confidentiality agreement; and (E) the proposal.LIFC Stockholders Meeting has not occurred. For purposes of this Agreement, "
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New York Community Bancorp Inc), Agreement and Plan of Merger (Long Island Financial Corp)
No Solicitation. Other than with respect to the Transaction(a) None of IHI and its Subsidiaries, each of the Affiliated Companies or T-3 and Qorus agrees that neither it its Subsidiaries will (nor will they permit any of its their respective Affiliates, officers, directors, managersrepresentatives, or managing members shallagents to), and that it shall direct and use its reasonable best efforts prior to cause its and its agents and other representatives (including any investment banker, attorney the earlier of the Closing Date or accountant retained by it) not tothe termination of this Agreement pursuant to Section 8.1, directly or indirectly, initiate, (i) solicit, initiate or encourage the submission of any proposal for a Sale Transaction, (ii) enter into any agreement with respect to any Sale Transaction or otherwise give any approval with respect to any Sale Transaction, or (iii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to or take any other action to facilitate any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managersconstitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead to, directly any Sale Transaction 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7proposal for a Sale Transaction. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposalpreceding sentence, if applicable, at any time the Board of Directors of IHI or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors T-3 determines in good faith, after consultation (i) based on the advice of outside counsel, that it is advisable to do so in order to comply with outside legal counsel that such action is necessary to act in a manner consistent with the directors' its fiduciary duties to its stockholders under applicable law Applicable Law and determines in good faith (ii) after consultation with its financial advisors advisors, that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition ProposalSales Transaction, if consummated as proposedcompleted, is materially more favorable would result in a transaction superior to the transaction contemplated by this Agreement, taking into account, among other things, the long term interests of IHI or T-3, as applicable, and their stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"), IHI or T-3 (and their respective officers, directors, representatives or agents) may in response to a written proposal for a Sale Transaction not solicited on or after the date hereof, subject to compliance with Section 6.13(c), (A) furnish information with respect to itself or a Subsidiary pursuant to a customary confidentiality agreement to any Person making such proposal, and determines (B) participate in good faith negotiations regarding such proposal. Without limiting the foregoing, it is understood that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects any violations of the proposal and the person making the proposalrestrictions set forth in this Section 6.13(a) by any of a party's officers, directors, representatives, agents, Affiliates or Subsidiaries, whether or not such Person is purporting to act on behalf of such party or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 6.13(a) by such party.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Industrial Holdings Inc), Agreement and Plan (T-3 Energy Services Inc)
No Solicitation. Other than with respect to (a) Neither the Transaction, each of the Affiliated Companies and Qorus agrees that neither it Company nor any of its officers, directors, managers, or managing members Subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly, initiatetake (nor shall the Company authorize or permit its Subsidiaries, solicitofficers, encourage directors, employees, representatives, investment bankers, attorneys, accountants or otherwise other agents or affiliates, to take) any action to (i) encourage, solicit or initiate the submission of any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal. The Company will promptly communicate to Parent that such a solicitation or an inquiry has been received by the Company, or that any such information has been requested from it or that such negotiations or discussions have been sought to be initiated with respect to it and will keep Parent reasonably informed of the status and terms of any Acquisition Proposal. As used herein, "Acquisition Proposal" shall mean any proposed (iA) a merger, reorganizationconsolidation, share exchange, consolidation exchange or similar transaction involving itthe Company or its Subsidiaries, (iiB) any sale, leaselease or other disposition, exchangedirectly or indirectly, mortgageby merger, pledgeconsolidation, transfer share exchange or purchase otherwise of all or substantially all assets of the assets Company 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 its Subsidiaries representing 20% or more of the outstanding shares of Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each consolidated assets of the Affiliated Companies Company and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing its Subsidiaries (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (Bthan A&S), (C) issue, sale or other disposition of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 20% or more of the voting power of the Company, or (D) abovetransaction (including a tender offer or exchange offer) in which any person would acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act) of, Qorus' board or the right to acquire beneficial ownership, of directors determines in good faith(whether itself, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a member of any "Superior Proposal"group" (as such term is defined under the Exchange Act) and determines in good faith that such Superior Proposal is reasonably capable or otherwise) 20% or more of being consummated, taking into account legal, financial, regulatory and other aspects any class of equity securities of the proposal and the person making the proposalCompany or its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Essef Corp), Agreement and Plan of Merger (Pentair Inc)
No Solicitation. Other than (a) Except as expressly permitted by this Section 5.3, from and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Affiliates and its and their respective Representatives not to, on behalf of the Company, directly or indirectly (i) initiate, solicit, facilitate or knowingly encourage any Acquisition Proposal or the making or submission thereof or the making of any proposal that could reasonably be expected to lead to any Acquisition Proposal or (ii) participate in any negotiations regarding, or furnish any Third Party any non-public information relating to the Company or its Subsidiaries, in connection with an Acquisition Proposal. The Company shall, and shall cause its Affiliates and Representatives to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussion or negotiations, if any, with any Third Party conducted prior to the date hereof with respect to the Transaction, each of the Affiliated Companies any Acquisition Proposal and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its agents Affiliates to return or destroy (and other representatives (including confirm destruction of) all such information. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor 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 committee thereof shall (i) a mergeradopt, reorganizationapprove or recommend, share exchangeor publicly propose to adopt, consolidation approve or similar transaction involving itrecommend, any Acquisition Proposal, (ii) any salewithdraw, leasechange, exchangequalify, mortgagewithhold or modify, pledgeor publicly propose to withdraw, transfer change, qualify, withhold or purchase of all or substantially all of the assets or equity securities of it, taken as a wholemodify, in a single transaction manner adverse to Parent or series of related transactions or Merger Sub, the Company Board Recommendation, (iii) any tender offer or exchange offer for 20% or more if an Acquisition Proposal has been publicly disclosed, fail, within three (3) days of the outstanding shares request of Qorus Common Stock or the Company's Shares (any Parent, to publicly recommend against such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal in accordance with Section 5.3(e), (iv) approve, authorize, cause or otherwise facilitating permit the Company or any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party its Subsidiaries to enter into any merger agreement, acquisition agreement, letter of intent, agreement in principle, acquisition agreement memorandum of understanding or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause Proposal (Ba “Company Acquisition Agreement”), (C) or (Dv) above, Qorus' board resolve or agree to do any of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view foregoing (any such more favorable Acquisition Proposal being referred to as action set forth in the foregoing clauses (i) through (v) of this sentence, a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable “Change of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalBoard Recommendation”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Icahn Enterprises Holdings L.P.), Agreement and Plan of Merger (American Railcar Industries, Inc.)
No Solicitation. Other than with respect to (a) From and after the Transactiondate hereof, each of the Affiliated Companies ONEOK will not, and Qorus agrees that neither it nor will not authorize or permit any of its officers, directors, managersemployees, investment bankers, attorney or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives or those of any of its Subsidiaries (including any investment bankercollectively, attorney or accountant retained by it"ONEOK Representatives") not to, directly or indirectly, initiate, solicit, initiate or encourage or otherwise facilitate (including by way of providing information to any inquiries or prospective buyer) the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managersconstitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead to, directly an Acquisition Proposal (as hereinafter defined) from any person or indirectly, engage in any discussions or negotiations concerning, or provide providing any confidential non-public information or data towith respect thereto or otherwise cooperate with or assist or participate in, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement implement, any such proposal; provided, however, that, notwithstanding any other provision of this Agreement, (i) ONEOK's Board of Directors may take and disclose to ONEOK's stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act, and (ii) prior to approval of this Agreement by ONEOK's stockholders and following receipt from a third party (without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, by or with ONEOK or any ONEOK Representatives) of an unsolicited bona fide Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing , (x) ONEOK may engage in discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each such third party and/or may furnish such third party information concerning ONEOK and its business, properties and assets if such third party executes a confidentiality agreement in favor of ONEOK and (y) the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals Board of Directors of ONEOK may withdraw, modify or entities not make its recommendation referred to in Section 6.5. In the first sentence hereof event ONEOK or the Board of Directors of ONEOK takes any of the obligations undertaken actions specified in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing clauses (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (Cx) or (Dy) aboveof the immediately preceding sentence, Qorus' board WRI shall be notified of directors determines in good faith, after consultation with outside legal counsel that the taking of such action is necessary to act in a manner consistent contemporaneously with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making taking of such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal action and the person making provisions of Section 6.19 shall thereupon terminate without any further action on the proposalpart of WRI or ONEOK.
Appears in 2 contracts
Samples: Agreement (Western Resources Inc /Ks), Merger Agreement (Oneok Inc)
No Solicitation. Other than (a) Each of the Company and Parent (each, a “No-Shop Party” and, with respect to each other, the Transaction, each of the Affiliated Companies and Qorus “Other Party”) agrees that neither it nor any of its officers, directors, managers, or managing members Subsidiaries shall, and that it each No Shop Party shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, solicitapprove, encourage endorse, recommend or otherwise facilitate encourage, or take any inquiries other action designed to, or which would reasonably be expected to, facilitate, any inquiry or the making or announcement of any proposal or offer with that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal in respect to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving itof such No-Shop Party, (ii) engage, continue or otherwise participate in any salediscussions or negotiations regarding, leaseor furnish (or cause to be furnished) non-public information relating to such No-Shop Party or any of its Subsidiaries or afford access to properties, exchange, mortgage, pledge, transfer books or purchase of all or substantially all records of the assets No-Shop Party or equity securities any of itits Subsidiaries to any Person in connection with or in furtherance of any Acquisition Proposal, taken as a whole, in a single transaction or series of related transactions or (iii) any tender offer approve or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus further agree that they and their officers, directors, managersrecommend, or managing members shall, and that they shall direct and use their reasonable best efforts propose to cause their agents and representatives not to, directly approve or indirectly, engage in any negotiations concerningrecommend, or provide any confidential information consummate, execute 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, exchange agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement relating agreement, constituting or related to, or that is intended to or would reasonably be expected to lead to an Acquisition Proposal (other than confidentiality agreements contemplated by this Section 7.3), or (iv) propose publicly or agree to do any of the foregoing. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this paragraph by any Representative of a No-Shop Party or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of such No-Shop Party or any of its Subsidiaries or otherwise, shall be a breach of this Section 7.3(a) by such No-Shop Party. Notwithstanding the foregoing, at any time prior to (but not after) obtaining the Company Shareholder Approval or the Parent Shareholder Approval, as applicable, a No-Shop Party may, directly or indirectly through its Representatives, (i) furnish information and access, but only in response to a written request for information or access, to any person making an Acquisition Proposal which was not solicited, initiated, knowingly encouraged or knowingly facilitated by the No-Shop Party or any of its Subsidiaries, Affiliates or Representatives and (ii) may participate in discussions and negotiate with such Person concerning any such unsolicited Acquisition Proposal, if, if and only to the extent that all of the following conditions are met: (A) the No-Shop Party has not breached this Section 7.3(a) in each any material respect with respect to such case referred to in clause Acquisition Proposal, (B), (C) or (D) above, Qorus' board the No-Shop Party’s Board of directors Directors determines in good faith, after consultation with receipt of advice from outside legal counsel and a financial advisor of nationally recognized reputation, that such action Acquisition Proposal constitutes or is necessary reasonably likely to act in lead to a manner consistent Superior Proposal, and (C) the No-Shop Party enters into a customary confidentiality agreement with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group Person making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, which is materially more (1) no less favorable to the stockholders No-Shop Party and (2) no less restrictive of Qorus from a financial point of view such Person than the Nondisclosure Agreement, dated August 11, 2014, between Parent and the Company (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"the “Confidentiality Agreement”) and determines in good faith that all such Superior Proposal information provided thereunder has previously been provided to the Other Party or is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of provided to the proposal and the person making the proposalOther Party concurrently with its provision to such Person.
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members The Stockholders shall, and that it shall cause their respective directors, officers and employees not to, shall direct their Representatives not to, and use its reasonable best efforts to cause its and its agents and other representatives (including shall not authorize or permit any investment banker, attorney or accountant retained by it) not of their Representatives to, directly or indirectly, (i) solicit, initiate, solicit, propose or knowingly take any action to facilitate or encourage or otherwise facilitate any inquiries or the making or submission of any proposal or offer with respect that constitutes, or would reasonable be expected to (i) a mergerlead to, reorganization, share exchange, consolidation or similar transaction involving itany Acquisition Proposal, (ii) enter into or participate in any salediscussions, leasecommunications or negotiations with, exchangefurnish any non-public information relating to the Company or any of its Subsidiaries, mortgageor afford access to the business, pledgeproperties, transfer assets, books or purchase of all or substantially all records of the assets Company or equity securities any of itits Subsidiaries to, taken as a wholeany Third Party relating to or in furtherance of, in a single transaction any proposal or series of related transactions offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal, (iii) (x) approve, endorse or recommend any tender offer proposal, or exchange offer for 20% (y) enter into any agreement in principle, merger agreement, acquisition agreement, option agreement, letter of intent (binding or more non-binding) or other similar Contract, in each case of the outstanding shares of Qorus Common Stock clause (x) or the Company's Shares (y), relating to any such Acquisition Proposal or any proposal or offer being hereinafter referred that constitutes, or would reasonably be expected to as an "lead to, any Acquisition Proposal"). Each Proposal or (iv) resolve or agree to do any of the Affiliated Companies foregoing. Notwithstanding the foregoing, the Stockholders may participate in discussions and Qorus further agree that they negotiations with any Third Party with whom the Company’s Board of Directors is engaging in negotiations or discussions pursuant to and their officersin compliance with Section 6.3 of the Merger Agreement, directorssolely for the purpose of entering into a voting agreement with such Third Party on substantially similar terms to the terms hereof. On the date hereof, managers, or managing members the Stockholders shall, and that they shall direct and use their reasonable best efforts to cause their agents respective directors, officers and representatives not employees to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data and will instruct their other Representatives 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 Qorus agree that they will cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations negotiations, if any, with any parties Third Party and its Representations conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under date hereof that would be prohibited by the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors other provisions of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalSection 3.3.
Appears in 1 contract
No Solicitation. Other than with respect to From the Transaction, each date of this Agreement until the earlier of the Affiliated Companies and Qorus agrees that Closing Date or the date this Agreement is terminated pursuant to Section 9.1 hereof, neither it the Company nor any of its directors, officers, directorsagents, managersemployees, Affiliates or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not to, will directly or indirectly, initiate, : (i) solicit, encourage encourage, initiate or participate in any negotiations or discussions with respect to any offer or proposal (formal or informal, oral, written or otherwise) to acquire all or any part of the Company, whether by purchase of assets, exclusive license, joint venture formation, purchase of stock, business combination or otherwise (an “Acquisition Proposal”), (ii) disclose any information not customarily disclosed to any Person concerning the Company and which the Company believes would be used for the purposes of formulating any Acquisition Proposal, (iii) assist, cooperate with, facilitate or encourage any Person to make, participate in any discussions or negotiations with any Person with respect to, or take any other action to facilitate any inquiries or the making of of, any proposal that constitutes or offer may reasonably be expected to lead to, any Acquisition Proposal, (iv) agree to, enter into a contract regarding, approve, recommend or endorse any transaction involving any Acquisition Proposal or (v) authorize or permit any of the Company’s representatives to take any such action; provided, however, that if the Stockholder Consent is not obtained following the Company’s reasonable efforts to obtain the Stockholder Consent, so long as there has been no breach of this Section 6.5 or Section 6.7 by the Company, the Company may, in response to an Acquisition Proposal that was not solicited after the date hereof and otherwise in compliance with respect to the obligations under this Section 6.5 and Section 6.7, (i) participate in discussions or negotiations with, request clarifications from, or furnish information to, any Person which makes such Acquisition Proposal if (A) the Company’s board of directors reasonably determines in good faith, after consultation with outside legal counsel and financial advisor, that such Acquisition Proposal could reasonably be expected to lead to a mergerSuperior Proposal, reorganization(B) the Company’s board of directors reasonably determines in good faith, share exchangeafter consultation with outside legal counsel, consolidation or similar transaction involving itthat failure to take such actions would constitute a breach of fiduciary duties under Applicable Law and (C) such action is taken subject to a non-disclosure agreement containing customary terms and conditions that are in the aggregate at least as restrictive to the other party as the terms and conditions in the Non-Disclosure Agreement, and, (ii) any saleprovided that the Company has complied with the provisos to its rights to terminate this Agreement pursuant to Section 9.1.7 hereof, 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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as enter into an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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 agreement with respect to, or have any discussions withapprove or recommend to its stockholders, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition a Superior Proposal. Each Upon the execution of this Agreement, the Affiliated Companies Company and Qorus agree that they will its Subsidiaries shall cease immediately cease and cause to be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal and promptly request that all confidential information with respect thereto furnished by the Company and its Subsidiaries be returned. With respect to any Acquisition Proposal that constitutes a Superior Proposal. Each , for a period of five (5) Business Days after such determination by the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the Company’s board of directors and the giving of Qoruswritten notice of such determination by the Company to Parent, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition ProposalCompany shall, if applicablerequested by Parent, or otherwise complying negotiate in good faith to revise this Agreement with the Exchange Act; (B) providing information in response intent of enabling Parent to agree to a request therefore modification of the terms and conditions of this Agreement so that the transactions contemplated hereby may be effected (provided such transactions have been determined by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' Company’s board of directors in its good faith judgment to be at least as favorable to the Company’s stockholders). From the date of this AgreementAgreement until the earlier of the Closing Date or the date this Agreement is terminated pursuant to Section 9.1 hereof, approving the Company shall notify Parent as promptly as practicable (and in any event within one (1) Business Day) of any proposal or recommending offer (formal or informal, oral, written or otherwise), or any inquiry or contact with any Person with respect thereto, regarding any Acquisition Proposal or causing the applicable party to enter into of any letter of intent, agreement request for information in principle, acquisition agreement or other similar agreement relating to any connection with a potential Acquisition Proposal, if, and only such notice to include the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board identity of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate Person proposing such Acquisition Proposal and that the terms thereof (including furnishing a copy of any written proposal), and shall keep Parent apprised, on a current basis, of the status of any such Acquisition Proposal, if consummated as proposed, is materially more favorable Proposal and of any modifications to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalterms thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mentor Graphics Corp)
No Solicitation. Other than with respect to Unless and until the Transaction, each date of termination of this Agreement the Affiliated Companies and Qorus agrees that neither it Acquiror will not (nor will the Acquiror permit any of its officers, directors, managerscontrolling Shareholders, agents, representatives or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by itaffiliates to) not to, directly or indirectly, initiate, take any of the following actions with any party other than Target and its designees: (a) solicit, encourage encourage, initiate or otherwise facilitate participate in any inquiries negotiations or the making of discussions or enter into any proposal or offer agreement with respect to, any offer or proposal to acquire all, substantially all or a significant portion of the Acquiror's business, properties or technologies or any portion of the Acquiror's capital stock (iwhether or not outstanding) a whether by 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 itassets, taken as a whole, in a single transaction or series of related transactions or (iii) any tender offer or exchange offer for 20% otherwise, or more effect any such transaction, (b) disclose any information not customarily disclosed to any person concerning this agreement and the transaction contemplated as described herein, the Acquiror's business, technologies or properties or afford to any person or entity access to its properties, technologies, books or record or (c) assist or cooperate with any person to make any proposal to purchase all or any part of the outstanding shares of Qorus Common Stock Acquiror's capital stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")assets. Each of the Affiliated Companies and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement In addition to the contraryforegoing, nothing contained in this Agreement shall prevent if the board of directors of Qorus, or their respective representatives fromAcquiror receives, prior to the Closing (A) complying with Rule 14e-2 promulgated under Date or the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors termination of this Agreement, approving any offer, proposal, or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement request relating to any Acquisition Proposalof the above, ifthe Acquiror shall immediately notify Target thereof, and only including information as to the extent that in each such case referred to in clause (B), (C) identity of the offeror or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group party making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the offer or proposal and the person making specific terms of such offer or proposal, as the proposalcase may be, and such other information related thereto as Target may reasonably request. The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 4.5 (b)(x) were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties that Target shall be entitled to seek an injunction or injunctions to prevent breaches of the provisions of this Section and to enforce specifically the terms and provisions hereof in any court of the United States, Canada, or any State and/or Province thereof having jurisdiction, this being in addition to any other remedy to which Target may be entitled at law or in equity.
Appears in 1 contract
Samples: Asset Purchase and Share Issuance Agreement (New World Batteries, Inc.)
No Solicitation. Other than with respect (a) From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to the TransactionArticle VII, each of the Affiliated Companies Company and Qorus agrees that neither it its subsidiaries will not, nor will they authorize or permit any of its their respective officers, directors, managers, affiliates or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney or accountant other advisor or representative retained by it) not any of them to, directly or indirectly, (i) solicit, initiate, solicit, encourage or otherwise induce the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or offer with respect would reasonably be expected to (i) a mergerlead to, reorganizationany Acquisition Proposal, 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 Qorus 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 Qorus 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, 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each , (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of the Affiliated Companies and Qorus agree intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction (as defined below); PROVIDED, HOWEVER, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement Section 5.4 shall prevent prohibit the board Board of directors Directors of Qorus, or their respective representatives from, prior to the Closing Company from (Ai) complying with Rule 14e-2 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, a tender or otherwise complying with the Exchange Act; exchange offer or (Bii) providing information in response to a request therefore by a person who has made a an unsolicited, bona fide unsolicited written Acquisition Proposal; Proposal that Company's Board of Directors reasonably concludes constitutes a Superior Offer (C) as defined below), engaging in any discussions or participating in negotiations or discussions with any person who has made a bona fide unsolicited and furnishing information to the party making such Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (CA) or (D) above, Qorus' board the Board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with Directors of the directors' fiduciary duties under applicable law and Company determines in good faith after consultation with its financial advisors outside legal counsel that the person or group making failure to take such Acquisition Proposal has adequate sources of financing action would be inconsistent with its fiduciary obligations under applicable law, (B) (x) at least two business days prior to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (furnishing any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummatednonpublic information to, taking or entering into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.discussions or
Appears in 1 contract
Samples: Agreement and Plan of Merger (Peregrine Systems Inc)
No Solicitation. Other than (a) Takeover Proposal. Neither the Company, on the one hand, nor Parent, on the other hand, shall, and each shall cause their respective Subsidiaries (if any) not to, and shall not authorize or permit its or its respective Subsidiaries’ (if any) directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the Transactionforegoing Persons are referred to herein as such Person’s “Representatives”) to, each directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 5.04 (b): (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or Parent or any of their respective Subsidiaries (if any) to, afford access to the business, properties, assets, books, or records of the Affiliated Companies Company or Parent or any of their respective Subsidiaries (if any) to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) that is seeking to make, or has made, any Takeover Proposal; (ii) (A) except where the Company Board or Parent Board, as applicable, makes a good faith determination, after consultation with outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or Parent, as applicable, or any of their respective Subsidiaries (if any), or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 912 of the NYBCL; or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract relating to any Takeover Proposal (each, an “Acquisition Agreement”). Except as expressly permitted by this Section 5.04, neither the Company Board shall effect a Company Adverse Recommendation Change, nor shall the Parent Board effect a Parent Adverse Recommendation Change. The Company on the one hand, and Qorus agrees that neither it nor Parent, on the other hand, shall, and shall cause their respective Subsidiaries (if any) to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its officersor their Representatives to continue, directorsany and all existing activities, managersdiscussions, or managing members shallnegotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and that it shall direct and use its reasonable best efforts to cause its and any such third party (or its agents and other representatives (including any investment banker, attorney or accountant retained by itadvisors) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making in possession of any proposal or offer with non-public information in respect to (i) 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 Company or equity securities of itParent, 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 Qorus 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 Qorus further agree that they and their officers, directors, managers, or managing members shallapplicable, 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior Subsidiaries(if any) that was furnished by or on behalf of such party or its respective Subsidiaries(if any) to the Closing return or destroy (Aand confirm destruction of) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each all such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.information. 40
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus (a) The Company agrees that neither it nor any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not towill not, directly or indirectlyindirectly through any officer, Subsidiary, Affiliate, director, employee, stockholder, representative, agent or other Person, (i) seek, initiate, solicit, solicit or encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect Person to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving itmake an Acquisition Proposal, (ii) engage in negotiations or discussions concerning an Acquisition Proposal with any salePerson or group, 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) disclose any tender offer non-public information relating to the Company or exchange offer for 20% give access to the properties, employees, books or more records of the outstanding shares Company or any of Qorus Common Stock its Subsidiaries to any Person or group in connection with any Acquisition Proposal or (iv) approve or recommend or agree to approve or recommend any Acquisition Proposal; provided that nothing herein shall prevent the Special Committee or the Company's Shares Board of Directors (acting through the Special Committee) (either directly or indirectly through advisors, agents or other intermediaries) from (a) furnishing information in writing or orally pursuant to a customary confidentiality agreement concerning the Company and its businesses, properties or assets to any such Person (a "Third Party") in response to any unsolicited inquiry, proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus further agree that they and their officersoffer, 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 (b) engaging 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any such a Third Party that has made such inquiry, proposal or offer, (c) following receipt of a bona fide Acquisition Proposal. Each , taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e- 2(a) under the 1934 Act or otherwise making disclosure to its stockholders, (d) following receipt of the Affiliated Companies and Qorus agree that they will take the necessary steps a bona fide Acquisition Proposal, failing to promptly inform the individuals make or entities withdrawing or modifying its recommendation referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in 4.02 hereof, and/or (e) terminating this Agreement but in each case referred to the contraryin clauses (a) through (e), nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines the Special Committee shall have concluded in good faith, after consultation with outside faith (upon the advice of legal counsel counsel) that such action is necessary to act in a manner consistent with required by the directors' Special Committee's (and the Board of Directors') fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalCompany under applicable law.
Appears in 1 contract
Samples: Recapitalization Agreement (Sunburst Hospitality Corp)
No Solicitation. (a) Other than as required by their fiduciary responsibilities, the Board of Directors of Kevlxx xxxll not ---------------------------- Agreement and Plan of Merger Page 29 186599 -29- 34 negotiate an Acquisition Proposal (as defined below) with respect to a Third Party unless and until this Agreement has been terminated in accordance with the Transaction, each of the Affiliated Companies and Qorus agrees that neither it nor provisions hereof. (b) Neither Kevlxx xxx any of its officers, directors, managers, or managing members subsidiaries shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly, initiatetake (nor shall Kevlin authorize or permit its subsidiaries, solicitofficers, encourage directors, employees, representatives, investment advisors, bankers, attorneys, accountants or otherwise facilitate other agents or affiliates, to take) any inquiries or the making of any proposal or offer with respect action to (i) encourage, solicit or initiate the submission of any Acquisition Proposal (as defined below), (ii) enter into any agreement with respect to any Acquisition Proposal or (iii) participate in discussions or negotiations with, or furnish any information to, any person in connection with any Acquisition Proposal; provided, that, to the extent required by the fiduciary obligations of the Board of Directors of Kevlxx (xx determined in good faith by the Board of Directors of Kevlxx xxxed upon written advice of Palmxx & Xodge), upon receipt of (x) an unsolicited and written Superior Proposal (as defined in SECTION 5.4(c) below) or (y) an unsolicited and written Potential Superior Proposal (as defined below), Kevlxx xxx: (1) take the action referred to in clause (ii) of this sentence with respect to such Superior Proposal or Potential Superior Proposal but only in connection with a simultaneous termination of this Agreement in accordance with SECTION 6.1, and (2) take any of the actions referred to in clause (iii) of this sentence with respect to such Superior Proposal or Potential Superior Proposal. A "Potential Superior Proposal" shall mean a proposal that a majority of the disinterested members of the Board of Directors of Kevlxx xxxermines in its good faith judgment to be reasonably likely to lead to a Superior Proposal (as defined in SECTION 5.4(c) below). "Acquisition Proposal" shall mean, except for the transactions contemplated by this Agreement, any proposed (i) merger, reorganization, share exchange, consolidation or similar transaction involving itKevlxx, (iixi) any sale, leaselease or other disposition directly or indirectly by merger, exchangeconsolidation, mortgage, pledge, transfer share exchange or purchase otherwise of all assets of Kevlxx xx it subsidiaries representing 10% or substantially all more of the consolidated assets or equity securities of itKevlxx xxx its subsidiaries, taken as a whole, in a single transaction or series of related transactions or (iii) issue, sale or other disposition of (including by way of merger, consolidation, share exchange or any tender offer similar transaction) securities (or exchange offer for 20options, rights or warrants to purchase, or securities convertible into, such securities) representing 10% or more of the voting power of Kevlxx xx (iv) transaction in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of 10% or more of the outstanding shares Kevlxx Xxxmon Stock. Kevlxx xxxll notify Chelxxx xxxmptly of Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation shall provide Chelxxx xxxh all available information with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalrespect thereto.
Appears in 1 contract
Samples: 2 Agreement and Plan (Kevlin Corp)
No Solicitation. Other than Except for leads brought to Company by Remington Financial, existing Company Stockholders, Private Investor Group (Xxxxxxx Group), Private Investor Group (Rice Group), Private Investor Group (Magnussen Group), and Infinite Business Possibilities (Money Finder), Company and its officers, directors, employees, representatives, and agents shall immediately cease any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal (as hereinafter defined). Except for leads brought to Company by Remington Financial, existing Company Stockholders, Private Investor Group (Xxxxxxx Group), Private Investor Group (Rice Group), Private Investor Group (Magnussen Group), and Infinite Business Possibilities (Money Finder), from and after the Transactiondate hereof until the abandonment or termination of this Agreement, each Company shall not, nor shall it permit any of the Affiliated Companies and Qorus agrees that neither it nor its subsidiaries to, authorize or permit any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney financial advisor, attorney, accountant, or accountant other representative retained by it) not it or any of its subsidiaries to, directly or indirectly, (i) solicit, initiate, solicitor knowingly encourage (including by way of furnishing non-public information or assistance), encourage or otherwise facilitate knowingly take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managersconstitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (Dii) withdrawing participate in any discussions or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to negotiations regarding any Acquisition Proposal; provided, however, that if, and only to at any time the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board Board of directors Directors of Company determines in good faith, after consultation with outside independent legal counsel (who may be Company’s regularly engaged independent counsel), that such action it is necessary to act do so in a manner consistent order to comply with the directors' its fiduciary duties to the Company Stockholders under applicable law and determines law, Company may, in good faith after consultation with its financial advisors that the person or group making such response to an unsolicited Acquisition Proposal has adequate sources of financing that could reasonably be expected to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from be considered or become a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated(as hereinafter defined), taking into account legaland subject to compliance with Section 4.3(c), financial, regulatory and other aspects of the proposal and (x) furnish information with respect to Company to the person making such unsolicited Superior Proposal pursuant to a confidentiality agreement in reasonably customary form, and (y) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal, or offer from any person relating to any direct or indirect acquisition or purchase of 20% or more of the proposal.assets of Company and its subsidiaries or 20% or more of any class of equity securities of Company or any of its subsidiaries; any tender offer or
Appears in 1 contract
Samples: Agreement and Plan of Merger (InPlay Technologies, Inc.)
No Solicitation. Other than with respect to Each of Apricus and the TransactionCompany agrees that, each of during the Affiliated Companies and Qorus agrees that Pre-Closing Period, neither it nor any of its officers, directors, managers, or managing members Subsidiaries shall, and that nor shall it shall direct and use or any of its reasonable best efforts to cause Subsidiaries authorize any of its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not Representatives to, directly or indirectly, initiate, : (i) solicit, encourage initiate or otherwise knowingly encourage, induce or facilitate any inquiries the communication, making, submission or the making announcement of any proposal Acquisition Proposal or offer Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish any non-public information regarding such Party to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iiv) approve, endorse or recommend any Acquisition Proposal (subject to Section 5.2 and Section 5.3); (v) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction; or (vi) publicly propose to do any of the foregoing; provided, however, that, notwithstanding anything contained in this Section 4.4 and subject to compliance with this Section 4.4, prior to the approval of this Agreement by a mergerParty’s stockholders (i.e., reorganizationthe Required Company Stockholder Vote, share exchangein the case of the Company, consolidation or similar transaction involving itthe Required Apricus Stockholder Vote in the case of Apricus), such Party may furnish non-public information regarding such Party and its Subsidiaries to, and enter into discussions or negotiations with, any Person in response to a bona fide written Acquisition Proposal by such Person which such Party’s board of directors 56 Exhibit 2.1 determines in good faith, after consultation with such Party’s outside financial advisors and outside legal counsel, constitutes, or is reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither such Party nor any Representative of such Party shall have breached this Section 4.4 in any material respect, (iiB) any salethe board of directors of such Party concludes in good faith based on the advice of outside legal counsel, lease, exchange, mortgage, pledge, transfer or purchase of all or substantially all that the failure to take such action is reasonably likely to be inconsistent with the fiduciary duties of the assets or equity securities board of it, taken as a whole, in a single transaction or series directors of related transactions or such Party under applicable Law; (iiiC) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus Common Stock or the Company's Shares (at least two Business Days prior to furnishing any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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 nonpublic information or data to, or have any entering into discussions with, such Person, such Party gives the other Party written notice of the identity of such Person and of such Party’s intention to furnish nonpublic information to, or enter into discussions with, such Person; (D) such Party receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions) at least as favorable to such Party as those contained in the Confidentiality Agreement; and (E) substantially contemporaneously with furnishing any person relating such nonpublic information to such Person, such Party furnishes such nonpublic information to the other Party (to the extent such information has not been previously furnished by such Party to the other Party). Without limiting the generality of the foregoing, each Party acknowledges and agrees that, in the event any Representative of such Party (whether or not such Representative is purporting to act on behalf of such Party) takes any action that, if taken by such Party, would constitute a breach of this Section 4.4 by such Party, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 4.4 by such Party for purposes of this Agreement. (a) If any Party or any Representative of such Party receives an Acquisition ProposalProposal or Acquisition Inquiry at any time during the Pre-Closing Period, then such Party shall promptly (and in no event later than one Business Day after such Party becomes aware of such Acquisition Proposal or otherwise facilitate Acquisition Inquiry) advise the other Party orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof). Such Party shall keep the other Party reasonably informed with respect to the status and terms of any effort such Acquisition Proposal or attempt Acquisition Inquiry and any material modification or proposed material modification thereto. In addition to make the foregoing, Apricus shall provide the Company with at least one Business Day’s written notice of a meeting of the Apricus Board (or implement any committee thereof) at which the Apricus Board (or any committee thereof) is reasonably expected to consider an Acquisition ProposalProposal or Acquisition Inquiry it has received. (b) Each of the Affiliated Companies and Qorus agree that they will Party shall immediately cease and cause to be terminated any existing discussions or discussions, negotiations and communications with any parties conducted heretofore with respect Person that relate to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated Inquiry as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal date of this Agreement and request the person making the proposal.destruction or return of any nonpublic information provided to such Person. 4.5
Appears in 1 contract
No Solicitation. Other than with respect (a) Notwithstanding anything to the Transactioncontrary set forth in this Agreement, each during the period commencing with the execution, delivery and effectiveness of this Agreement and continuing until 11:59 p.m. (Eastern time) on May 13, 2009 (the Affiliated Companies “No-Shop Period Start Date”), the Company and Qorus agrees that neither it nor any of its officersSubsidiaries and their respective Affiliates, directors, managersofficers, employees, consultants, agents, representatives and advisors (collectively, “Representatives”) shall have the right (acting under the direction of the Company Board or managing members shallany authorized committee thereof), and that it shall direct and use its reasonable best efforts to cause its and 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 (i) a mergerinitiate, reorganizationsolicit and/or encourage the submission of one or more Acquisition Proposals from one or more Persons, share exchangeincluding by furnishing to any Person (and/or such Person’s Affiliates, consolidation directors, officers, employees, consultants, agents, representatives and advisors) any non-public information relating to the Company or similar transaction involving itany of its Subsidiaries or by affording to any Person (and/or such Persons’ Affiliates, directors, officers, employees, consultants, agents, representatives and advisors) access to the business, properties, assets, books, records or other non-public information, or to the personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Newco and Merger Sub any material non-public information concerning the Company or its Subsidiaries that is made available to any Person given such access which was not previously delivered to Newco and Merger Sub, (ii) continue, enter into, participate in and/or engage in any sale, lease, exchange, mortgage, pledge, transfer discussions 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% negotiations with one or more of the outstanding shares of Qorus Common Stock or the Company's Shares Persons (any and/or such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus further agree that they and their officersPersons’ Affiliates, directors, managersofficers, employees, consultants, agents, representatives and advisors) with respect to one or managing members shall, and more Acquisition Proposals or any other proposals that they shall direct and use their reasonable best efforts could reasonably be expected 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 lead to an Acquisition Proposal, (iii) otherwise cooperate with, assist or otherwise take any action to facilitate any effort Acquisition Proposals or attempt any other proposals that could reasonably be expected to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect lead to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalProposals.
Appears in 1 contract
No Solicitation. Other than with respect Unless and until this Agreement shall have been properly terminated by either party pursuant to Section 8.01 hereof, neither the Transaction, each of the Affiliated Companies and Qorus agrees that neither it Seller nor any of its subsidiaries shall (and the Seller and each of its subsidiaries shall use all reasonable efforts to cause its officers, directors, managersemployees, or managing members shallrepresentatives and agents, including, but not limited to, investment bankers, attorneys and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankeraccountants, attorney or accountant retained by it) not to), directly or indirectly, initiateencourage, solicit, encourage initiate or, subject to the fiduciary obligations of the Seller's Board of Directors (as advised in writing by outside counsel), participate in any discussions or otherwise facilitate negotiations with, or provide any inquiries information to, any corporation, partnership, person or other entity or group (other than the making of Buyer and its affiliates or representatives) concerning any proposal or offer with respect to (i) a merger, reorganizationtender offer, share exchangesale of substantial assets (other than as otherwise permitted under this Agreement), consolidation sale of shares of capital stock or debt securities or similar transaction involving it, the Seller or any of its subsidiaries (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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalTransaction"). Each of Notwithstanding the Affiliated Companies and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contraryforegoing, nothing contained in this Agreement Section 5.03 shall prevent prohibit the board Seller or its Board of directors of Qorus, or their respective representatives from, prior Directors from taking and disclosing to the Closing (ASeller's stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) complying with Rule 14e-2 promulgated under the Exchange Act or from making such disclosure to the Seller's stockholders which, in the judgment of the Board of Directors, with regard the written advice of outside counsel, may be required under applicable law. The Seller will immediately communicate to the Buyer the terms of any proposal, discussion, negotiation or inquiry relating to an Acquisition ProposalTransaction and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction (which shall mean that any such communication shall be delivered no less promptly than by telephone within twenty-four (24) hours of the Seller's receipt of any such proposal or inquiry) or its receipt of any request for information from the OTS, if applicableFederal Reserve Board, DOJ or otherwise complying any other governmental agency or authority with the Exchange Act; (B) providing information in response respect to a request therefore by a person who has made a bona fide unsolicited proposed Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalTransaction.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Boston Bancorp)
No Solicitation. Other than Upon execution and delivery of this Agreement by the parties, the Company shall notify those other persons with respect to which it is, at the time of such execution and delivery, discussing an Acquisition Transaction (as defined below) that it has entered into this Agreement and is terminating discussions with such person regarding any potential Acquisition Transaction, each of the Affiliated Companies . The Company and Qorus agrees that neither it nor any of its subsidiaries and their respective officers, directors, trust managers, or managing members shalldirectors and employees shall not, and that it shall direct the Company and its subsidiaries will use its all reasonable best efforts to cause its and its their representatives, agents and other representatives (including any investment banker, attorney or accountant retained by it) affiliates not to, directly or indirectly, initiate(i) enter into or participate in any discussions or negotiations with, furnish any non-public information relating to the Company or any of its subsidiaries or otherwise provide assistance to any corporation, partnership, person or other entity or group (other than Equity One or any affiliate or associate of Equity One or any of its respective directors, officers, employees, representatives or agents) concerning any merger, consolidation, business combination, liquidation, reorganization, sale of substantially all of its assets, sale of shares of beneficial interest or capital stock or similar transactions involving the Company or any material subsidiary of the Company (each an "Acquisition Transaction"); (ii) knowingly encourage, solicit, encourage or otherwise facilitate any inquiries or initiate the making submission of any proposal or offer with respect to (i) 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (Diii) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, however, that if Company's Board of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors Trust Managers determines in good faith, after consultation with outside legal counsel counsel, that such action it is necessary required to act do so in a manner consistent with the directors' exercise of the fiduciary duties of the Company's Trust Managers to the Company or its shareholders, the Board of Trust Managers may take any of the foregoing actions and shall so notify Equity One; and provided further that nothing contained in this Section 5.2 shall prohibit the Company or its Board of Trust Managers from taking and disclosing to the Company's shareholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making such other disclosure to the Company's shareholders which, as advised by outside counsel, is required under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposallaw.
Appears in 1 contract
No Solicitation. Other than with respect to (a) From the Transaction, each date hereof until the earlier of the Affiliated Companies and Qorus agrees that neither Effective Time or the date on which this Agreement is terminated in accordance with the terms hereof, the Company shall not, nor shall it nor permit any of its officersSubsidiaries to, directorsnor shall it authorize or permit any officer, managersdirector or employee of the Company or any of its Subsidiaries, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankerfinancial advisor, attorney or accountant retained by itother advisor or representative (“Representatives”) not of the Company or any of its Subsidiaries, to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to indirectly (i) solicit, initiate or knowingly facilitate, induce or encourage the submission of any Takeover Proposal (as hereinafter defined) or any proposal that could reasonably be expected to lead to a merger, reorganization, share exchange, consolidation or similar transaction involving itTakeover Proposal, (ii) enter into any saleletter of intent, leaseagreement in principle or Contract providing for, exchangerelating to or in connection with, mortgageany Takeover Proposal or any proposal that could reasonably be expected to lead to a Takeover Proposal, 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 enter into, continue or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 otherwise participate 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore Third Party with respect to any Acquisition Proposal. Each Takeover Proposal or (iv) furnish to any Third Party any information regarding the Company or its Subsidiaries, or afford access to the properties, books and records of the Affiliated Companies and Qorus agree Company or its Subsidiaries, to any Third Party in connection with or in response to any Takeover Proposal; provided, however, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement prior to the contraryShareholder Meeting, nothing contained in this Agreement shall prevent the board Company or its Board of directors Directors from taking any of Qorus, or their respective representatives from, prior to the Closing actions described in clauses (Aiii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; and (Biv) providing information above in response to a request therefore any unsolicited bona fide written Takeover Proposal by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this AgreementThird Party, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, if and only to the extent that that, (A) in each the reasonable good faith opinion of the Board of Directors, after consultation with its outside financial advisors and outside legal counsel, such case referred Takeover Proposal would reasonably be expected to lead to a Superior Proposal and, in clause the reasonable good faith judgment of the Board of Directors of the Company, after consultation with its outside financial advisors, the Third Party making such Takeover Proposal has the financial means to conclude such transaction, (B)) the failure to take such action would, in the reasonable good faith judgment of the Board of Directors of the Company, after consultation with its outside legal counsel, violate the fiduciary duties of the Board of Directors of Company to the Company’s shareholders under applicable Law, (C) prior to furnishing such non-public information to, or entering into, continuing or otherwise participating in any discussions or negotiations with, such Third Party, the Board of Directors of the Company receives from such Third Party an executed confidentiality agreement which agreement shall contain provisions not less favorable to the Company than those contained in the Confidentiality Agreement between CCBI and the Company (an “Acceptable Confidentiality Agreement”), (D) above, Qorus' board of directors determines in good faith, after consultation the Company shall have provided to CCBI all materials and information required under Section 4.2(b) to be delivered by the Company to CCBI and (5) the Company shall have fully complied with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalthis Section 4.2.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Citizens Community Bancorp Inc.)
No Solicitation. Other than with respect to (a) From and after the Transactiondate hereof, each of the Affiliated Companies Arch will not, and Qorus agrees that neither it nor will not authorize or permit any of its officers, directors, managersemployees, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives or those of any of its Subsidiaries (including any investment bankercollectively, attorney or accountant retained by it"Arch Representatives") not to, directly or indirectly, initiatesolicit or knowingly encourage (including by way of providing information) any prospective acquiror or the invitation or submission of any inquiries, solicitproposals or offers or any other efforts or attempts that constitute, encourage or may reasonably be expected to lead to, an Acquisition Proposal (as defined herein) from any person or engage in any discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in or facilitate any inquiries or the making such proposal; provided, however, that, notwithstanding any other provision of any proposal or offer with respect to this Agreement, (i) Arch's Board of Directors may take and disclose to Arch's stockholders a merger, reorganization, share exchange, consolidation position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or similar transaction involving it, make any other disclosure to Arch's stockholders if failure to so disclose would be inconsistent with the fiduciary duties of the Board of Directors of Arch to its stockholders under applicable law and (ii) following receipt from a third party (without any salesolicitation, leaseinitiation, exchangeencouragement, mortgage, pledge, transfer discussion 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 Qorus 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 Qorus 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 tonegotiation, directly or indirectly, by or with Arch or any Arch Representatives) of a bona fide Acquisition Proposal that is financially superior to the Merger and reasonably capable of being financed (as determined in each case in good faith by Arch's Board of Directors after consultation with Arch's financial advisors), (x) Arch may 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore such third party and may furnish such third party information concerning Arch, and its business, properties and assets if such third party executes a confidentiality agreement in reasonably customary form and (y) the Board of Directors of Arch may withdraw, modify or not make its recommendation referred to in Section 5.3 or terminate this Agreement in accordance with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities Section 7.1(f), but in each case referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing foregoing clauses (Ai) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; and (Bii) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board the Board of directors determines Directors of Arch shall conclude in good faith, faith after consultation with Arch's outside legal counsel that such action is necessary in order for the Board of Directors of Arch to act in a manner that is consistent with the directors' its fiduciary duties obligations under applicable law and determines in good faith after consultation with its financial advisors notwithstanding any concessions that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalmay be offered by Pogo.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Arch Petroleum Inc /New/)
No Solicitation. Other Unless this Agreement shall have been terminated in accordance with Section 9.1, and except in connection with the Reorganization or as otherwise set forth in this Agreement, each Seller covenants that from the date hereof through the Initial Closing Date it will not, and will not permit any of its Affiliates and its and their respective Representatives to (a) make, solicit, assist, initiate, facilitate or encourage any inquiries, proposals, offers or bids from any other party relating to the Companies, the Equity Interests of the Companies or a significant portion of the Companies’ assets or businesses (other than with respect to the Transactionsale of assets in the Ordinary Course of Business) or (b) participate in any discussions or negotiations regarding, each or furnish or cause to be furnished to any Person any non-public information relating to the Companies, the Equity Interests of the Affiliated Companies and Qorus agrees that neither it nor any or the Companies’ assets or businesses (other than with respect to the sale of its officersassets in the Ordinary Course of Business). The Sellers covenant that, directorsexcept in connection with the Reorganization, managersfrom the date hereof through the Initial Closing Date, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not tothey will not, directly or indirectly, initiateenter into or authorize, solicitor permit any of their Representatives or Affiliates to enter into, encourage any agreement or otherwise facilitate agreement in principle with any inquiries or third party for the making acquisition of any proposal of the Equity Interests of the Companies or offer any of the Companies’ assets (other than with respect to the sale of assets in the Ordinary Course of Business) (ian “Acquisition Transaction”). The Sellers covenant and agree to inform Buyer in writing by facsimile within twenty-four (24) a mergerhours following the receipt by it or any of its Affiliates or Representatives of any inquiry, reorganizationproposal, share exchange, consolidation offer or similar transaction involving it, bid (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase of all or substantially all including the terms thereof and the identity of the assets or equity securities of itPerson making such inquiry, taken as a wholeproposal, in a single transaction or series of related transactions or (iii) any tender offer or exchange offer for 20% or more bid) in respect of any Acquisition Transaction. The Sellers covenants and agrees to request, within ten (10) Business Days of the outstanding shares of Qorus Common Stock or the Company's Shares (date hereof, from any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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 all third parties with which it participated 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each regarding the Companies, the Equity Interests of the Affiliated Companies and Qorus agree that they will take or the necessary steps to promptly inform Companies’ assets or business the individuals return or entities referred to in the first sentence hereof destruction of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement all non-public information relating to the contraryCompanies previously provided by Seller, nothing contained in this Agreement shall prevent the board of directors of Qorus, its Affiliates or their respective representatives from, prior its Representatives to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalthird parties.
Appears in 1 contract
Samples: Purchase Agreement (Legg Mason Inc)
No Solicitation. Other than with respect to the Transaction(a) The Company, each of the Affiliated Companies its affiliates and Qorus agrees that neither it nor any of its their respective officers, directors, managersemployees, representatives and agents will immediately cease any existing discussions or managing members shallnegotiations, if any, with any parties with respect to any Company Takeover Proposal, take the necessary steps to inform such parties of the obligations undertaken in this Section 5.2, and request that such parties promptly return all documents (and all copies thereof) furnished to them by the Company or its representatives in connection with such discussions and negotiations. The Company will not, nor will it shall direct and use permit any of its reasonable best efforts to cause its and its agents and Subsidiaries, officers, directors, employees, investment bankers, financial advisors, attorneys, accountants or other representatives (including any investment banker, attorney or accountant retained by it) not torepresentatives, directly or indirectly, initiate, to (i) solicit, initiate or take any other action that could reasonably be expected to facilitate or encourage (including without limitation by way of furnishing information or otherwise facilitate providing access to the books, records, properties or assets of the Company or any inquiries or of its Subsidiaries), the making of any proposal or offer with respect to (i) which constitutes a merger, reorganization, share exchange, consolidation or similar transaction involving itCompany Takeover Proposal, (ii) participate in any salediscussions or negotiations regarding any Company Takeover Proposal, 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) grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; provided, however, that if, at any time prior to the date on which Purchaser purchases Shares in the Offer (the "Offer Completion Date"), the Company Board determines in good faith by a majority vote that it has received a Superior Proposal, the Company may, (A) furnish information with respect to the Company and any of its Subsidiaries to such Person following compliance with its obligations under this Section 5.2(b), pursuant to a customary confidentiality agreement and (B) participate in discussions and negotiations with such Person regarding such Superior Proposal. For purposes of this Agreement, "Company Takeover Proposal" means any written proposal or offer from any Person relating to any direct or indirect acquisition or purchase of 20% or more of the assets, net income or net revenues of the Company and its Subsidiaries or 20% or more of any class of equity securities of the Company or any of its Subsidiaries, any tender offer or exchange offer for 20Shares for any class of equity securities of the Company or any of its Subsidiaries, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement, or any other transaction that is intended to or could frustrate the completion of the transactions contemplated hereby. "Superior Proposal" means any bona fide, unsolicited written Company Takeover Proposal that (y) involves the direct or indirect acquisition or purchase of 100% of the assets of the Company and its Subsidiaries or 50% or more of the outstanding shares of Qorus Common Stock of the Company and (z) involves payment of consideration to the Company or the Company's Shares (any such proposal or offer being hereinafter referred to Stockholders and other terms and conditions that, taken as an "Acquisition Proposal"). Each of a whole, the Affiliated Companies and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and Company Board determines in good faith by a majority vote, after consultation consulting with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point advisor of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") nationally recognized reputation, and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory all the terms and other aspects conditions of the proposal Company Takeover Proposal, including any breakup fees, expense reimbursement provisions and conditions to consummation, are more favorable and provide greater value to all the person Company's stockholders than as provided hereunder and for which financing, to the extent required, is then fully committed or the Company Board determines, after consulting with a financial advisor of nationally recognized reputation, is available. The Company shall notify Parent promptly (but in no event later than 24 hours) after receipt by the Company (or any of its advisors) of any Company Takeover Proposal or any request for information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any Person that may be considering making, or has made, a Company Takeover Proposal. The Company shall provide such notice orally and in writing and shall identify the Person making such Company Takeover Proposal, and provide in reasonable detail the proposalterms and conditions of any such Company Takeover Proposal, indication or request. The Company shall keep Parent fully informed, on a current basis, of the status and material details of any such Company Takeover Proposal, indication or request.
Appears in 1 contract
No Solicitation. Other than with respect to From the Transaction, each date of this Agreement until the earlier of the Affiliated Companies and Qorus agrees that neither it Closing Date or the date of the termination of this Agreement pursuant to Article X, the Sellers shall not, nor shall either of them authorize or permit any of its officersofficer, directorsdirector, managersemployee, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by itother adviser or representative of the Sellers to: (a) not to, directly or indirectly, initiate, solicit, initiate or encourage the submission of, any Acquisition Proposal (as hereinafter defined), (b) enter into any agreement with respect to any Acquisition Proposal, or otherwise (c) participate in any discussions or negotiations regarding, or furnish to any Person any information for the purpose of facilitating the making of, 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. The Sellers shall promptly advise Purchaser of any Acquisition Proposal and any inquiries with respect to any Acquisition Proposal. For purposes of this Section 7.5, “Acquisition Proposal” means any proposal for a merger or other business combination involving Sellers, the Business or the Purchased Assets or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in Sellers, any voting securities of Sellers, a substantial portion of the assets of Sellers, the Business or the Purchased Assets (but not including proposals for sales of inventory in the Ordinary Course of Business); provided, that nothing in this Section 7.5 will prohibit Sellers or their Affiliates from taking any of the actions described in this Section 7.5 with respect to (i) a merger, reorganization, share exchange, consolidation any actual or similar proposed change of control transaction involving it, (ii) ChromaDex Corporation where any sale, lease, exchange, mortgage, pledge, transfer or purchase of Person would acquire 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% ChromaDex Corporation or more than fifty percent (50%) of the outstanding shares common stock of Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalChromaDex Corporation.
Appears in 1 contract
No Solicitation. Other than with respect to Anadarko agrees that, during the Transactionterm of this Agreement, each of the Affiliated Companies it shall not, and Qorus agrees that neither it nor shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, directorsemployees, managers, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not torepresentatives, directly or indirectly, to solicit, initiate, solicit, encourage or otherwise facilitate facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal or offer with respect to (i) a any recapitalization, merger, reorganization, share exchange, consolidation or similar transaction other business combination involving itAnadarko, or any acquisition of 15% or more of the capital stock (iiother than upon exercise of Anadarko Options that are outstanding as of the date hereof) any sale, lease, exchange, mortgage, pledge, transfer or purchase of all 30% or substantially all more of the assets or equity securities of itAnadarko and its subsidiaries, taken as a whole, in a single transaction or a series of related transactions transactions, or (iii) any tender offer or exchange offer for 20% or more combination of the outstanding shares of Qorus Common Stock or the Company's Shares foregoing (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalAnadarko Competing Transaction"). Each , or negotiate, explore or otherwise engage in discussions with any person (other than UPR, Subcorp or their respective directors, officers, employees, agents and representatives) with respect to any Anadarko Competing Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that, at any time prior to the approval of the Affiliated Companies and Qorus further agree that they and their officersShare Issuance by the Anadarko Stockholders, directors, managers, or managing members shallAnadarko may furnish information to, 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 party who delivers a written proposal for an Anadarko Competing Transaction which was not solicited or encouraged after the date of this Agreement in violation of this Agreement if and so long as the Board of Directors of Anadarko determines in good faith by resolution duly adopted after consultation with its outside counsel (who may be its regularly engaged outside counsel) that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law and determines that such a proposal is, after consulting with the Anadarko Financial Advisor, more favorable to Anadarko Stockholders from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions proposed by UPR in response to such Anadarko Competing Transaction) (an Acquisition "Anadarko Superior Proposal"); provided, further, that prior to furnishing information to, or otherwise facilitate engaging in discussions with, any effort or attempt party pursuant to make or implement the foregoing proviso, Anadarko shall have received an Acquisition Proposalexecuted agreement from such party in the same form as the Confidentiality Agreement (other than Section 8 thereof which shall be waived for UPR under the Confidentiality Agreement upon the execution of such agreement). Each of the Affiliated Companies and Qorus agree that they Anadarko will immediately cease all existing activities, discussions and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each proposal for an Anadarko Competing Transaction and request the return of the Affiliated Companies and Qorus agree that they will take the necessary steps all confidential information regarding Anadarko provided to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, any such parties prior to the Closing date hereof pursuant to the terms of any confidentiality agreements or otherwise. In the event that prior to the approval of the Share Issuance by the Anadarko Stockholders, the Board of Directors of Anadarko receives an Anadarko Superior Proposal that was not solicited or encouraged after the date of this Agreement in violation of this Agreement, and the Board of Directors of Anadarko determines in good faith by resolution duly adopted after consultation with its outside counsel (Awho may be its regularly engaged outside counsel) complying that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law, the Board of Directors of Anadarko may (subject to this and the following sentences) withdraw, modify or change, in a manner adverse to UPR, the Anadarko Board Recommendation and/or comply with Rule 14e-2 promulgated under the Exchange Act with regard respect to an Acquisition ProposalAnadarko Competing Transaction, if applicable, provided that it gives UPR three business days' prior written notice of its intention to do so (provided that the foregoing shall in no way limit or otherwise complying with affect UPR's right to terminate this Agreement pursuant to Section 7.4(b)). Any such withdrawal, modification or change of the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying Anadarko Board Recommendation shall not change the approval of the Board of Directors of Anadarko for purposes of causing any state takeover statute or recommendation by Qorus' board other state law to be inapplicable to the transactions contemplated hereby, including the Merger or the Anadarko Stock Option Agreement or change the obligation of directors Anadarko to present the Share Issuance for approval at a duly called Anadarko Stockholders Meeting on the earliest practicable date determined in consultation with UPR. From and after the execution of this Agreement, approving Anadarko shall promptly (but in any event within one calendar day) advise UPR in writing of the receipt, directly or recommending indirectly, of any Acquisition Proposal inquiries, discussions, negotiations, or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement proposals relating to an Anadarko Competing Transaction (including the specific terms thereof and the identity of the other party or parties involved) and promptly furnish to UPR a copy of any Acquisition Proposalsuch written proposal in addition to any information provided to or by any third party relating thereto. In addition, ifAnadarko shall promptly (but in any event within one calendar day) advise UPR, and only in writing, if the Board of Directors of Anadarko shall make any determination as to any Anadarko Competing Transaction as contemplated by the proviso to the extent that in each such case referred to in clause (Bfirst sentence of this Section 5.2(d), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Union Pacific Resources Group Inc)
No Solicitation. Other than with respect Subject to the Transaction, each fiduciary duties of --------------- the Board of Directors of the Affiliated Companies and Qorus agrees that Company, neither it the Company nor any of its Subsidiaries or any of their respective officers, directors, managersrepresentatives or agents will take any action to (i) initiate the submission of any Acquisition Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal or managing members shall, (iii) participate in negotiations with any Person in connection with any Acquisition Proposal. The Company will promptly communicate to TCI any solicitation or inquiry received by the Company and that it shall direct and use its reasonable best efforts to cause its and 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 terms of any proposal or offer inquiry that it may receive in respect of any Acquisition Proposal, or of any such information requested from it or of any such negotiations or discussions being sought to be initiated with respect to it. Nothing in this Section 8.12 shall be construed as prohibiting the Board of Directors of the Company from (i) a making any disclosure to the Company's stockholders, or (ii) responding to any unsolicited proposal or inquiry by advising the Person making such proposal or inquiry of the terms of this Section 8.12. "Acquisition Proposal" means any proposed (i) merger, reorganization, share exchange, consolidation or similar transaction involving itthe Company, (ii) any sale, leaselease or other disposition directly or indirectly by merger, exchangeconsolidation, mortgage, pledge, transfer share exchange or purchase otherwise of all or substantially all any substantial part of the assets of the Company or equity securities of itits Subsidiaries, taken as a whole, in a single transaction or series of related transactions or (iii) issue, sale or other disposition of securities representing 50% or more of the voting power of the Company Common Stock or (iv) transaction in which any tender offer Person acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of, or exchange offer for 20the right to acquire beneficial ownership of, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 50% or more of the outstanding shares of Qorus Company 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalStock.
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members shallThe Company shall immediately cease, and that it shall direct and use its reasonable best efforts to cause its and its agents advisors and other representatives (including any investment bankeragents to cease, 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 (i) 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations negotiations, if any, with any parties conducted heretofore with respect to any Acquisition ProposalProposal (defined below); provided that following the cessation of any such discussions or negotiations, future discussions or negotiations with any such parties shall be governed solely by the following provisions of this Section 8.15. Each Except as provided pursuant to this Agreement, the Company shall not, directly or indirectly (through representatives or otherwise), solicit, knowingly encourage, participate in or initiate discussions or negotiations with, or provide any information to (collectively, the "Prohibited Activities"), any person or group (other than the Purchasers or any designee of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals Purchaser) concerning any proposal (an "Acquisition Proposal") for any acquisition of all or entities referred to in the first sentence hereof any substantial part of capital stock of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of QorusCompany, or their respective representatives froman acquisition of all or any substantial part of the business and properties of the Company and its subsidiaries taken as a whole, prior directly or indirectly, whether by merger, consolidation, share exchange, tender offer, purchase of assets or shares of capital stock or otherwise (an "Acquisition Transaction"). The Board of Directors of the Company (the "Board") shall promptly (and in no event later than 24 hours after receipt of the relevant Acquisition Proposal) notify (which notice shall be provided both orally and in writing) the Purchasers if any such Acquisition Proposal is made and shall, in such notice, indicate in reasonable detail the terms and conditions of such proposal and shall keep the Purchasers promptly advised of any material changes to the Closing (A) complying such terms and conditions. In connection with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicablethe Company agrees not to release any third party from, or otherwise complying with waive any provisions of, any confidentiality or standstill agreement to which the Exchange Act; (B) providing information in response to Company may be a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying party, unless the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines Board shall have determined in good faith that failing to release such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects third party or waive such provisions would constitute a breach of the proposal fiduciary duties of the Board under applicable law. Each party hereby covenants and the person making the proposal.agrees that:
Appears in 1 contract
Samples: Securities Purchase Agreement (Commercial Electronics LLC)
No Solicitation. Other than with respect Until the earlier of (i) the Closing and (ii) the date --------------- of termination of this Agreement pursuant to the Transactionprovisions of Section 13.1, each of the Affiliated Companies and Qorus agrees that neither it ------------ Seller shall not (nor will Seller permit any of its officers, directors, managersagents, representatives or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not Affiliates to), directly or indirectly, initiate, solicit, encourage or otherwise facilitate take any inquiries or of the making of following actions with any proposal or offer with respect to party other than Purchaser and its designees: (i) a mergersolicit, reorganizationencourage, share exchange, consolidation initiate 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging participate in any negotiations or discussions with respect to, any person who has made a bona fide unsolicited Acquisition Proposal offer or otherwise facilitating proposal to acquire (A) any effort or attempt to implement an Acquisition Proposal; of the Transferred Assets or (DB) withdrawing all or modifying any material portion of Seller's capital stock whether by merger, stock purchase, tender offer or otherwise, or effect any such transaction to the approval extent such transaction would be consummated prior to the earlier of the consummation of the transactions contemplated hereby or recommendation by Qorus' board of directors the termination of this Agreement, approving (ii) disclose any information not customarily disclosed to any person concerning the business of Seller or recommending afford to any Acquisition Proposal person or causing entity access to the applicable party Transferred Assets or to the books or records pertaining thereto, (iii) assist or cooperate with any person to make any proposal to purchase all or any material portion of Seller's capital stock or any of Seller's assets (except that the foregoing shall not restrict Seller's ability to sell any assets other than the Transferred Assets, provided that all proceeds of any such sale are used to pay Seller's existing liabilities and to fund Seller's continuing operations), or (iv) enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating with any person with respect to any Acquisition Proposalof the foregoing. In the event Seller shall receive any offer or proposal, ifdirectly or indirectly, and only to of the extent that in each such case type referred to in clause (B), (Ci) or (Diii) above, Qorus' board of directors determines or any request for disclosure or access pursuant to clause (ii) above, it shall immediately inform Purchaser as to any such offer or proposal and will cooperate with Purchaser by furnishing any information it may reasonably request. The Parties hereto agree that irreparable damage would occur in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors event that the person provisions of this Section were not performed in accordance with their specific terms or group making such Acquisition Proposal has adequate sources of financing were otherwise breached. It is accordingly agreed by Seller that Purchaser is entitled to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable seek an injunction or injunctions to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects prevent breaches of the proposal provisions of this Section and to enforce specifically the person making terms and provisions hereof of any court of the proposalUnited States having jurisdiction, this being in addition to any other remedy to which Purchaser may be entitled at law or in equity.
Appears in 1 contract
No Solicitation. Other than with respect Subject to Section 5.4(b), following the Transactionexecution and delivery of this Agreement, each of the Affiliated Companies Company will, and Qorus agrees that neither it nor any of will cause its officers, Subsidiaries and its executive officers and directors, managers, or managing members shall, and that it shall direct will instruct its legal and financial advisors and use its reasonable best efforts to cause each of its and Representatives (other than its agents and other representatives (including any investment bankernon-controlled Affiliates that are not directors, attorney officers or accountant retained by itemployees of the Company) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with, and terminate any data room access (or other access to diligence) of, any Person and its Representatives relating to, or that would reasonably be expected to lead to, an Acquisition Transaction. Unless the Company has already so requested, promptly following the date of this Agreement, the Company will request that each Person (other than Parent and its Representatives) that has executed a confidentiality agreement in connection with its consideration of an Acquisition Transaction promptly return or destroy, in accordance with the terms of such confidentiality agreement, all non-public information furnished to such Person by or on behalf of the Company or its Subsidiaries prior to the date of this Agreement. Subject to Section 5.4(b), during the Pre-Closing Period, the Company and its Subsidiaries, and their respective directors and executive officers, will not, and the Company will not authorize or direct any of its or its Subsidiaries’ other employees, consultants or other Representatives to, directly or indirectly, (i) solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal that constitutes, or is reasonably expected to lead to, an Acquisition Proposal; (ii) furnish to any Person or Group (other than Parent, Merger Sub or any of their respective Representatives) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person or Group (other than Parent, Merger Sub or any of their respective Representatives) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case in connection with any Acquisition Proposal or with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal or the making of any proposal that would reasonably be expected to lead to an Acquisition Proposal; (iii) knowingly participate, facilitate or engage in discussions or negotiations with any parties conducted heretofore Person or Group with respect to an Acquisition Proposal or with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement inquiries from third Persons relating to the contrary, nothing contained in this Agreement shall prevent the board making of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicableother than informing such Persons of the provisions contained in this Section 5.4, or otherwise complying discussing any Acquisition Proposal made by any Person or Group making the Acquisition Proposal with such Person or Group, solely to the Exchange Act; (B) providing information in response extent necessary to a request therefore by a person who has made a bona fide unsolicited clarify the terms of the Acquisition Proposal; (Civ) engaging in approve, endorse or recommend any negotiations proposal that constitutes, or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt is reasonably expected to implement lead to, an Acquisition Proposal; or (Dv) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principlememorandum of understanding, merger agreement, acquisition agreement or other similar agreement Contract relating to an Acquisition Transaction, other than, in each case, an Acceptable Confidentiality Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition ProposalTransaction, ifan “Alternative Acquisition Agreement”); or (vi) authorize or commit to do any of the foregoing. Following the date of this Agreement, the Company will not be required to enforce, and only will be permitted to waive, any “standstill” provision in any Contract to the extent that in each such case referred provision prohibits or purports to in clause prohibit a confidential proposal being made to the Company Board (B), (Cor any committee thereof) or (D) above, Qorus' board of directors determines if the Company has determined in good faith, after consultation with its financial advisor and outside legal counsel counsel, that failure to take such action is necessary to act in a manner consistent would be inconsistent with the directors' its fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposallaw.
Appears in 1 contract
No Solicitation. Other than (a) Neither SuperMedia nor Dex (each, a “No-Shop Party”, and with respect to each other, the Transaction“Other Party”) shall, and each of the Affiliated Companies shall cause its respective Subsidiaries not to, and Qorus agrees that neither it nor any of each shall direct its and its Subsidiaries’ officers, directors, managersemployees, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney financial advisor, attorney, accountant or accountant other retained by itrepresentative) not to, directly or indirectlyindirectly (i) solicit, initiate, solicit, encourage or otherwise facilitate 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 making of any proposal or offer with respect to (i) a merger, reorganizationMergers), share exchange, consolidation consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer), restructuring, recapitalization or similar transaction transactions involving itsuch 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 salediscussions or negotiations regarding an Alternative Transaction, 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) except as contemplated by Section 6.13, take any tender offer or exchange offer for 20% or more of action to exempt any Person from the outstanding shares of Qorus 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 Qorus 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 restrictions contained in any negotiations concerning, takeover or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, similar Law or otherwise facilitate any effort or attempt cause such restrictions not to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; apply or (Div) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any merger agreement, letter of intent, agreement in principle, acquisition 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 terms substantially similar agreement relating to, and no less favorable to any such No-Shop Party than, those contained in the Confidentiality Agreement, to furnish information concerning such No-Shop Party and its Subsidiaries to the Person making such Acquisition ProposalProposal and to consider and participate in discussions and negotiations with respect to such Acquisition Proposal received by such No- Shop Party, if, if and only to the extent that in each (A) such case referred to in clause Acquisition Proposal is an unsolicited, bona fide written Acquisition Proposal, (B)) such Acquisition Proposal did not result from a breach by such No-Shop Party of this Section 6.12, and (C) or (D) above, Qorus' board the Board of directors determines in good faith, after consultation with outside legal counsel that Directors of such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and No-Shop Party reasonably determines in good faith (after consultation with its such No-Shop Party’s outside legal counsel and independent financial advisors advisors) that the person or group making (x) such Acquisition Proposal has adequate sources of financing constitutes or would reasonably be expected to consummate such Acquisition lead to a Superior Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable (y) failure to do so would be inconsistent with its duties under applicable Laws. Such No-Shop Party shall promptly provide or make available to the stockholders of Qorus from a financial point of view (Other Party and its representatives any non-public information provided or made available to such more favorable Acquisition Proposal being referred other Person that was not previously provided or made available to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalOther Party.
Appears in 1 contract
Samples: Merger Agreement (Supermedia Inc.)
No Solicitation. Other than (i) The Seller and its subsidiaries and their respective officers, directors, employees, representatives, agents or affiliates shall cease any discussion or negotiations with any parties that may be ongoing with respect to the Transactionan Acquisition Proposal (as hereinafter defined). The Seller shall not, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor permit any of its Subsidiaries to, and it shall use its best efforts to cause its officers, directors, managersemployees, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) affiliates not to, directly or indirectly, initiate, (A) solicit, initiate or knowingly encourage (including by way of furnishing information), or otherwise facilitate knowingly take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or offer with respect may reasonably be expected to lead to, any Acquisition Proposal (i) a mergeras defined in this Section 5(h)), 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 (iiiB) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 participate 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to regarding any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree ; provided, however, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent if the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors Seller determines in good faith, after consultation with, and in part based on the advice of outside counsel, that it is required to do so in order to comply with outside legal counsel that such action is necessary to act in a manner consistent with the directors' its fiduciary duties to the Seller's stockholders under applicable law law, the Seller may, in response to an unsolicited Acquisition Proposal, and determines in good faith after consultation subject to compliance with its financial advisors that Section 5(h)(iii), (X) furnish information with respect to the person or group Seller to any Person making such unsolicited Acquisition Proposal has adequate sources of financing pursuant to consummate an executed confidentiality agreement with such Acquisition Proposal Person, and that (Y) participate in discussions or negotiations regarding such Acquisition Proposal. For purposes of this Agreement, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
Samples: Asset Purchase Agreement (Roxio Inc)
No Solicitation. Other than with respect to (a) Neither the TransactionCompany nor any of its Subsidiaries shall, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor authorize or permit any of its officers, directors, managers, directors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it) not to, directly it or indirectly, any of its Subsidiaries to initiate, solicit, encourage (including by way of furnishing information), or otherwise facilitate take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managerswhich constitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead to, directly or indirectly, engage in any negotiations concerningAcquisition Proposal (as defined herein), or provide any confidential information enter into or data to, maintain or have any continue discussions with, or negotiate with any person relating in furtherance of such inquiries or to obtain an Acquisition Proposal, or otherwise facilitate agree to or endorse any effort or attempt to make or implement an Acquisition Proposal. Each , and the Company shall notify Sterling orally (within one business day) and in writing (as promptly as practicable), in reasonable detail, as to any inquiries and proposals which it or any of its Subsidiaries or any of their respective representatives or agents may receive; provided, however, that (i) the Affiliated Companies and Qorus agree that they will immediately cease and Company may furnish or cause to be terminated any existing furnished confidential and non-public information concerning the Company and its businesses, properties or assets to a third party (subject to execution by such third party of a confidentiality agreement containing confidentiality provisions substantially similar to those of the letter agreement entered into between the Company and Sterling dated Mxxxx 00, 0000), (xx) following the execution of such a confidentiality agreement, the Company may engage in discussions or negotiations with any parties conducted heretofore a third party executing such an agreement, (iii) following receipt of an Acquisition Proposal, the Company may take and disclose to its shareholders a position with respect to any such Acquisition Proposal. Each , including, if such Acquisition Proposal is a tender offer, the Company Board may take and disclose to the Company’s shareholders a position contemplated by Rule 14e-2 under the Exchange Act, and/or (iv) following receipt of an Acquisition Proposal, the Affiliated Companies and Qorus agree that they will take the necessary steps Company Board may withdraw or modify its recommendation referred to promptly inform the individuals or entities in Section 5.28, but in each case referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing foregoing clauses (Ai) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; through (Biv) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines the Company Board shall conclude in good faith, after consultation with faith (on the basis of advice from outside legal counsel counsel) that such action is necessary required in order for the Company Board to act in a manner consistent with the directors' satisfy its fiduciary duties obligations under applicable law law; provided, further, that the Company Board shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after reasonable notice to and determines in good faith after consultation with its financial advisors Sterling with respect to such action and that the person or group making Company Board shall continue to consult with Sterling after taking such action and, in addition, if the Company Board receives an Acquisition Proposal has adequate sources or any request for confidential and non-public information or for access to the properties, books or records of financing to consummate such Acquisition Proposal and that such the Company or any Subsidiary for the purpose of making, or in connection with, an Acquisition Proposal, if consummated then the Company shall promptly inform Sterling as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects provided above of the terms and conditions of such proposal or request and the identity of the person making it. As used herein, the proposal.term “
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sterling Bancshares Inc)
No Solicitation. Other than with respect to (a) From and after the Transaction, each date of the Affiliated Companies and Qorus agrees that neither it nor any Original Agreement until the earlier of its officersthe Effective Time or the termination of this Agreement in accordance with Article VII hereof, directors, managers, or managing members shall, and that it the Company shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not tonot, directly or indirectly, through any officer, director, employee, representative or agent of the Company or any of its subsidiaries, take any action to initiate, solicitsolicit or encourage (including by way of furnishing any person any non-public information, encourage or otherwise facilitate any inquiries or except as permitted in Section 4.2(e)) or, subject to the making of any proposal or offer with respect to (i) 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 terms of the assets or equity securities of itimmediately following sentence, 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 Qorus 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 Qorus 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 participate 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to persons who are considering or who have made any Acquisition Proposal. Each inquiries or proposals regarding any merger, amalgamation, take-over bid, sale of substantial assets, sale of shares of capital stock (including without limitation by way of a tender offer) or similar transactions involving the Company or any subsidiaries of the Affiliated Companies and Qorus agree that they will take Company (any of the necessary steps to promptly inform the individuals foregoing inquiries or entities proposals being referred to in herein as an "ACQUISITION PROPOSAL"). Notwithstanding anything to the first sentence hereof of the obligations undertaken contrary contained in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, 4.2(a) or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors other provision of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intentCompany may, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B)the Board of Directors of the Company determines, (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel counsel, that such action is necessary to act in a manner consistent with the directors' Board's fiduciary duties under applicable law and determines require it to do so, participate in discussions or negotiations with, and, subject to the requirements of paragraph (d), below, furnish information to any person, entity or group after such person, entity or group has delivered to the Company, an unsolicited bona fide Acquisition Proposal which the Board of Directors of the Company in its good faith reasonable judgment determines, after consultation with its independent financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposaladvisors, if consummated as proposed, is materially would result in a transaction more favorable to the stockholders shareholders of Qorus from a financial point of view the Company than the transactions contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to as a "SUPERIOR PROPOSAL"). In addition, notwithstanding any other provision of this Agreement, in connection with a possible Acquisition Proposal, the Company may refer any third party to this Section 4.2 or make a copy of this Section 4.2 available to a third party. In the event the Company receives a Superior Proposal", nothing contained in this Agreement (but subject to the terms of this Section 4.2) and determines in good faith that will prevent the Board of Directors of the Company from accepting, approving or recommending such Superior Proposal to its shareholders, if the Board determines, in good faith, after consultation with outside legal counsel, that such action is reasonably capable required by its fiduciary duties under applicable law; in such case, the Board of being consummated, taking into account legal, financial, regulatory and other aspects Directors of the Company may withdraw, modify or refrain from making its recommendation set forth in Section 5.1(a), and, to the extent it does so, the Company may refrain from soliciting proxies and taking such other action necessary to secure the vote of its shareholders as may be required by Section 5.2; provided, however, that the Company shall not accept, approve or recommend to its shareholders, or enter into any agreement concerning, a Superior Proposal for a period of not less than three business days after Parent's receipt of a copy of the Superior Proposal (or a reasonably detailed written description of the significant terms and conditions thereof, if such proposal is not in writing). (b) Notwithstanding Section 4.2(a) above, nothing contained in this Agreement shall prohibit the Company from complying with Rules 14d-9 and 14e-2 under the person making Exchange Act; provided, however, that, in complying with Rules 14d-9 and 14e- 2, the proposal.Company will not make or authorize any recommendation of any Acquisition Proposal unless such proposal constitutes a Superior Proposal. (c) The Company shall immediately (and no later than 24 hours) notify Parent and Dutchco after receipt of any written Acquisition Proposal or any request for non-public information relating to the Company or A-22
Appears in 1 contract
Samples: Agreement and Plan (Autodesk Inc)
No Solicitation. Other than with respect to the Transaction, each Each of the Affiliated Companies parties hereto agrees that, during the term of this Agreement, without the consent of the other, it shall not, and Qorus agrees that neither it nor shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, directorsemployees, managers, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not torepresentatives, directly or indirectly, to solicit, initiate, solicit, knowingly encourage or otherwise facilitate facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal or offer with respect to any merger, consolidation or other business combination involving such party, or any acquisition of any capital stock or any material portion of the assets (except for acquisitions of assets in the ordinary course of business consistent with past practice and except for consummation of the GM Transactions) of such party, or any combination of the foregoing (in each case, a "Competing Transaction"), or negotiate, explore or otherwise engage in discussions with any person (other than the other party hereto or its respective directors, officers, employees, agents and representatives or, with respect to Hughes, its affiliates) with respect to any Competing Transacxxxx xr enter into any agreement, arrangement or understanding therefor requiring them to abandon, terminate or fail to consummate the Merger; provided, however, that Hughes' obligations under this Section 5.1(k) shall only applx xxxx respect to a Competing Transaction that includes the Defense Business or the consummation of which would otherwise result in the termination or material breach of any of the Transaction Agreements, and provided further, that notwithstanding any other provision hereof, each party may (i) engage in discussions or negotiations with a mergerthird party who (without any solicitation, reorganizationinitiation, share exchangeknowing encouragement, consolidation discussion 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 Qorus 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 Qorus 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 tonegotiation, directly or indirectly, engage in any negotiations concerningby or with such party or its subsidiaries, or provide any confidential of its or its subsidiaries' directors, officers, employees, agents or representatives after the date hereof) seeks to initiate such discussion or negotiations and may furnish such third party information or data toconcerning such party and its business, or have any discussions withproperties and assets if, any person relating and only to an Acquisition Proposalthe extent that, or otherwise facilitate any effort or attempt in each case (A) (x) the third party has first proposed a Competing Transaction that is superior to make or implement an Acquisition Proposal. Each of the Affiliated Companies transactions contemplated by this Agreement and Qorus agree has demonstrated that they will immediately cease and cause the consideration necessary for the Competing Transaction is reasonably likely to be terminated any existing available (all as determined in good faith in each case by such party's Board of Directors after consultation with its financial advisors) and (y) such party's Board of Directors has concluded in good faith, on the basis of oral or written advice of outside counsel, that such action is necessary for the Board of Directors to act in a manner consistent with its fiduciary duties under Applicable Law and (B) prior to furnishing such information to or entering into discussions or negotiations with any parties conducted heretofore such person, such party shall have (x) provided prompt notice to the other party of its intent to furnish information to or enter into discussions or negotiations with such person or entity and a description of the financial and other terms of the proposed Competing Transaction (as well as all material revisions or modifications thereof), together with the evidence by which the third party which proposed such Competing Transaction demonstrated the likely availability of the consideration therefor, and (y) received from such person or entity an executed confidentiality agreement in reasonably customary form on terms not in the aggregate materially more favorable to such person or entity than the terms contained in the Confidentiality Agreement, (ii) with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contraryRaytheon, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying comply with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposala tender or exchange offer, if applicableand/or (iii) provided such party shall have terminated this Agreement pursuant to Section 7.1(i) hereof, or otherwise complying with the Exchange Act; (B) providing information in response to accept a request therefore by Competing Transaction from a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any third party. Each party hereto will immediately cease all existing activities, discussions and negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating parties conducted heretofore with respect to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalforegoing.
Appears in 1 contract
No Solicitation. Other than with respect to From and after the Transactiondate hereof until the termination of this Agreement, each of the Affiliated Companies and Qorus agrees that neither it FSSB, nor any FSSB Subsidiary, nor any of its their respective officers, directors, managersemployees, or managing members shallrepresentatives, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives Affiliates (including including, without limitation, any investment banker, attorney or accountant retained by it) not toFSSB or any of the FSSB Subsidiaries), will, directly or indirectly, initiate, solicit, solicit or knowingly encourage (including by way of furnishing non-public information or otherwise facilitate assistance) any inquiries or the making of any proposal that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with respect any Person in furtherance of such inquiries or to (i) a merger, reorganization, share exchange, consolidation obtain an Acquisition Proposal or similar transaction involving it, (ii) agree to or endorse 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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each , or authorize or permit any of the Affiliated Companies and Qorus further agree that they and their its officers, directors, managersor employees or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or managing members shallother representative retained by any of its Subsidiaries to take any such action, and FSSB shall notify Farmers orally (within one business day) and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which it or any of its Subsidiaries or any such officer, director or employee, or, to FSSB's Knowledge, investment banker, financial advisor, attorney, accountant or other representative of FSSB may receive relating to any of such matters, provided, however, that they nothing contained in this Section 6.10 shall direct and use their reasonable best efforts to cause their agents and representatives not to, directly prohibit the Board of Directors of FSSB from (i) complying with its disclosure obligations under federal or indirectly, engage in any negotiations concerning, state law; or provide any confidential (ii) furnishing information or data to, or have any entering into discussions or negotiations with, any person relating to or entity that makes an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B)that, (CA) or (D) above, Qorus' board the Board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and Directors of FSSB determines in good faith (after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummatedlegal advisors), taking into account all legal, financial, financial and regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
No Solicitation. Other than (a) Unless this Agreement shall have been terminated in accordance with respect to the Transactionits terms, each of the Affiliated Companies and Qorus agrees that neither it Paul-Son nor any of its officers, directors, managers, or managing members B&G shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent: (i) solicit, initiate, solicitor encourage any inquiries or proposals that constitute, encourage or otherwise could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets, sale of shares of capital stock (including without limitation by way of a tender offer) or similar transaction involving their respective companies or any of their Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) engage in negotiations or discussions with any person (or group of persons) or its respective affiliates (a "Third Party") other than Paul-Son or B&G concerning, provide any non-public information to any person or entity relating to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, an Acquisition Proposal, or offer (iii) enter into any agreement with respect to any Acquisition Proposal; provided, however, that nothing contained in this Section 5.4 shall prevent Paul-Son, B&G or their respective boards of directors from furnishing non-public information (isubject to obtaining appropriate confidentiality and non-disclosure agreements) to, or entering into discussions or negotiations with, any Third Party in connection with an unsolicited bona fide written proposal for an Acquisition Proposal by such Third Party, if and only to the extent that (w) such Third Party has made a mergerwritten proposal to the board of directors of Paul-Son or B&G, reorganizationas the case may be, share exchangeto consummate an Acquisition Proposal, consolidation which proposal identifies a price or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase range of all values to be paid for the outstanding securities or substantially all of the assets of Paul-Son or equity securities of itB&G, taken as a wholethe case may be, in a single transaction or series of related transactions or (iiix) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of QorusPaul-Son or B&G, or their respective representatives fromas the case may be, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources advisor of financing to consummate such Acquisition Proposal and nationally recognized reputation, that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being completed on substantially the terms proposed, and would, if consummated, taking into account legalresult in a transaction that would provide greater value to the respective company's stockholders than the Combination contemplated by this Agreement (a "Superior Proposal"), financialand (y) the board of directors of Paul-Son or B&G, regulatory and other aspects as the case may be, determines in good faith, based on the advice of outside legal counsel, that the proposal and failure to take such action would be inconsistent with its fiduciary duties to the person making stockholders of Paul-Son or B&G, as the proposalcase may be, under applicable law.
Appears in 1 contract
Samples: Registration Rights Agreement (Paul Son Gaming Corp)
No Solicitation. Other than with respect to the Transaction(a) NHP shall not, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor permit any of its officers, directors, managerssubsidiaries, or managing members shallany of their Representatives (including, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including without limitation, any investment banker, attorney or accountant retained by it) not toNHP or a subsidiary of NHP), directly or indirectly, to, (i) initiate, solicitsolicit or encourage any inquiries or proposals that 41 48 constitute, encourage or could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of assets representing a substantial portion of the assets of NHP and its subsidiaries, taken as a whole, sale of shares of capital stock (other than to NHP or a subsidiary of NHP), including, without limitation, by way of a tender offer or exchange offer by any person (other than NHP or a subsidiary of NHP) for shares of capital stock of NHP, other than the Transactions (any of the foregoing inquiries or proposals being referred to in this Agreement as an "Acquisition Proposal"), (ii) engage in negotiations or discussions concerning, or provide to any person or entity any non-public information or data relating to NHP or any subsidiary of NHP for the purposes of, or otherwise cooperate with or assist or participate in, facilitate or encourage, any inquiries or the making of any proposal or offer with respect to (i) a mergerAcquisition Proposal, 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 Qorus 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 Qorus 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 approve or indirectly, engage in recommend 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 (iv) take any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations other action inconsistent with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in and commitments assumed by NHP pursuant to this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary6.6; provided, however, that nothing contained in this Agreement shall prevent the board NHP or its Board of directors of QorusDirectors from (A) furnishing nonpublic information to, or their respective representatives fromentering into discussions or negotiations with, any person or entity in connection with an unsolicited bona fide written Acquisition Proposal to NHP or its stockholders, if and only to the extent that (1) the Board of Directors of NHP, by action of a majority of the entire Board of Directors of NHP, or by the Board of Directors with the approval of its Independent Committee, determines in good faith (after consultation with outside legal counsel) that such action is necessary for such Board of Directors to comply with its fiduciary duties to stockholders under applicable law, and (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such person or entity, the Closing Board of Directors of NHP receives from such person or entity an executed confidentiality agreement with terms no less favorable to such party than those contained in the NHP Confidentiality Agreement; or (AB) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating making any effort other public disclosure that, in the opinion of NHP's counsel, is required by applicable law, rule or attempt regulation; provided, that prior to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending making any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or such other similar agreement relating to any Acquisition Proposal, if, and only public disclosure NHP shall to the extent reasonably practicable inform AIMCO that in each it intends to make such case referred disclosure and consult with AIMCO regarding the necessity for such disclosure. NHP will immediately cease and cause to in clause (B)be terminated any existing activities, (C) discussions or (D) above, Qorus' board of directors determines in good faith, after consultation negotiations by NHP or its Representatives with outside legal counsel that such action is necessary any parties conducted heretofore with respect to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalforegoing.
Appears in 1 contract
No Solicitation. Other than with respect to (a) The Company agrees that from the Transaction, each date of this Agreement until such time as the Parent's designees shall constitute a majority of the Affiliated Companies and Qorus agrees Board of Directors of the Company or the termination of this Agreement (i) that neither it nor any of its officers, directors, managers, directors or managing members employees shall, and that it shall direct and use its reasonable best efforts to cause its and the Company will instruct its agents and other representatives (including including, without limitation, any investment banker, attorney or accountant retained by itit or any of its subsidiaries) not toto initiate, solicit or knowingly encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer with respect Acquisition Proposal (including, without limitation, any Acquisition Proposal to (iits stockholders) a mergeror, reorganization, share exchange, consolidation or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase other than in the event that the Board of all or substantially all Directors of the assets or equity securities Company determines in good faith, after receiving advice from outside counsel, that failure to do so would be reasonably determined to constitute a breach 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 Qorus Common Stock or its fiduciary duties to the Company's Shares (any such proposal or offer being hereinafter referred stockholders under applicable law, and in response to as an "Acquisition Proposal"). Each unsolicited request therefor by a person who a majority of the Affiliated Companies and Qorus further agree that they and their officers, directors, managers, or managing members shall, and that they shall direct and use their reasonable best efforts Board of Directors of the Company believes intends to cause their agents and representatives not to, directly or indirectlysubmit a Superior Proposal (as defined below), 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 release any third party from any obligations under any existing standstill agreement or arrangement, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies ; and Qorus agree (ii) that they it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies foregoing, and Qorus agree that they it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof above of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary6.02; PROVIDED, HOWEVER, that nothing contained in this Agreement Section 6.02 shall prevent prohibit the board Company or its Board of directors of Qorus, or their respective representatives from, prior Directors from taking and disclosing to the Closing (ACompany's stockholders a position with respect to a tender offer by a third party pursuant to Rule 14d-9 and 14e-2(a) complying with Rule 14e-2 promulgated under the Exchange Act with regard or from making such disclosure to an Acquisition Proposalthe Company's stockholders which, if applicablein the judgment of the Board of Directors of the Company after receiving advice of outside counsel, or otherwise complying with may be required under applicable law. From and after the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors execution of this Agreement, approving the Company shall promptly advise Parent in writing of the receipt, directly or recommending indirectly, of any inquiries, discussion, negotiations, or proposals relating to an Acquisition Proposal (including the specific terms thereof and, subject to any confidentiality obligations of the Company existing as of the date hereof, the identity of the other party or causing parties involved) and furnish to Parent within 24 hours of such receipt an accurate description of all material terms (including any changes or adjustment to such terms as a result of negotiations or otherwise) of any such written proposal in addition to any non-public information provided to any third party relating thereto. In addition, the applicable party to enter into Company shall promptly advise Parent, in writing, if the Board of Directors of the Company shall make any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating determination as to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
No Solicitation. Other than with respect to (a) Each of Terrain and the TransactionCompany agrees that, each of during the Affiliated Companies and Qorus agrees that Pre-Closing Period, neither it nor any of its officers, directors, managers, or managing members Subsidiaries shall, and that nor shall it shall direct and use or any of its reasonable best efforts to cause Subsidiaries authorize any of its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not Representatives to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to : (i) a mergersolicit, reorganizationinitiate or knowingly encourage, share exchangeinduce or facilitate the communication, consolidation making, submission or similar transaction involving itannouncement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry, (ii) furnish any salenon-public information regarding such Party to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry, 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore Person with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort Acquisition Inquiry, (iv) approve, endorse or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending recommend any Acquisition Proposal (subject to Section 6.2 and Section 6.3), (v) execute or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement intent or other similar agreement any Contract contemplating or otherwise relating to any Acquisition ProposalTransaction or (vi) publicly propose to do any of the foregoing; provided, ifhowever, that, notwithstanding anything contained in this Section 5.4 and subject to compliance with this Section 5.4, prior to the approval of this Agreement by a Party’s stockholders (i.e., the Required Company Stockholder Vote, in the case of the Company and its Subsidiaries, or the Required Terrain Stockholder Vote, in the case of Terrain), such Party may furnish non-public information regarding such Party and its Subsidiaries to, and only enter into discussions or negotiations with, any Person in response to the extent that in each a bona fide written Acquisition Proposal by such case referred to in clause (B), (C) or (D) above, Qorus' Person which such Party’s board of directors determines in good faith, after consultation with such Party’s financial advisors and outside legal counsel, constitutes, or is reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither such Party nor any Representative of such Party shall have breached this Section 5.4 in any material respect, (B) the board of directors of such Party concludes in good faith based on the advice of outside legal counsel that the failure to take such action is necessary would reasonably be expected to act in a manner consistent be inconsistent with the board of directors' ’ fiduciary duties under applicable law Law, (C) prior to or concurrently with initially furnishing any such nonpublic information to, or entering into discussions with, such Person, such Party gives the other Party written notice of the identity of such Person and determines of such Party’s intention to furnish nonpublic information to, or enter into discussions with, such Person, (D) such Party receives from such Person an executed Acceptable Confidentiality Agreement and (E) prior to or concurrently with furnishing any such nonpublic information to such Person, such Party furnishes such nonpublic information to the other Party (to the extent such information has not been previously furnished by such Party to the other Party). Without limiting the generality of the foregoing, each Party acknowledges and agrees that, in good faith after consultation with its financial advisors that the person or group making event any Representative of such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition ProposalParty takes any action that, if consummated as proposedtaken by such Party, is materially more favorable would constitute a breach of this Section 5.4 by such Party, the taking of such action by such Representative shall be deemed to the stockholders constitute a breach of Qorus from a financial point this Section 5.4 by such Party for purposes of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalthis Agreement.
Appears in 1 contract
No Solicitation. Other than Upon execution and delivery of this Agreement by the parties, the Company shall notify those other persons with respect to which it is, at the time of such execution and delivery, discussing an Acquisition Transaction (as defined below) that it has entered into this Agreement and is terminating discussions with such person regarding any potential Acquisition Transaction, each of the Affiliated Companies . The Company and Qorus agrees that neither it nor any of its subsidiaries and their respective officers, directors, trust managers, or managing members shalldirectors and employees shall not, and that it shall direct the Company and its subsidiaries will use its all reasonable best efforts to cause its and its their representatives, agents and other representatives (including any investment banker, attorney or accountant retained by it) affiliates not to, directly or indirectly, initiate(i) enter into or participate in any discussions or negotiations with, furnish any non- public information relating to the Company or any of its subsidiaries or otherwise provide assistance to any corporation, partnership, person or other entity or group (other than Equity One or any affiliate or associate of Equity One or any of its respective directors, officers, employees, representatives or agents) concerning any merger, consolidation, business combination, liquidation, reorganization, sale of substantially all of its assets, sale of shares of beneficial interest or capital stock or similar transactions involving the Company or any material subsidiary of the Company (each an "Acquisition Transaction"); (ii) knowingly encourage, solicit, encourage or otherwise facilitate any inquiries or initiate the making submission of any proposal or offer with respect to (i) 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (Diii) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter agreement requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, however, that if Company's Board of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors Trust Managers determines in good faith, after consultation with outside legal counsel counsel, that such action it is necessary required to act do so in a manner consistent with the directors' exercise of the fiduciary duties of the Company's Trust Managers to the Company or its shareholders, the Board of Trust Managers may take any of the foregoing actions and shall so notify Equity One; and provided further that nothing contained in this Section 5.2 shall prohibit the Company or its Board of Trust Managers from taking and disclosing to the Company's shareholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making such other disclosure to the Company's shareholders which, as advised by outside counsel, is required under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposallaw.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Investors Realty Trust)
No Solicitation. Other than with respect to the Transaction, each Each of the Affiliated Companies and Qorus Shareholders agrees that neither it nor any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not tonot, directly or indirectly, nor shall it authorize, instruct or, if asked or notified, permit (to the extent feasible) any of its trustees, advisors, agents, representatives or other intermediaries to, (i) solicit, initiate, solicit, encourage or otherwise take any action to facilitate any inquiries submission of inquiries, proposals or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus 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, offers from any person relating to an Acquisition (A) any acquisition or purchase of any or all of the Subject Shares or (B) any Transaction Proposal or agree to or endorse any Transaction Proposal, other than the transactions contemplated by the Merger Agreement, or (ii) enter into or participate in any discussions or negotiations regarding any of the foregoing or furnish to any other person any information with respect to the Company's or Parent's business, properties or assets or any of the foregoing, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to make do or implement an Acquisition Proposal. Each seek any of the Affiliated Companies foregoing (other than in their capacities as officers and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each directors of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to Company in the first sentence hereof event that the Board of Directors of the obligations undertaken Company has concluded in this accordance with Section 6.78.4 of the Merger Agreement that similar actions on the part of the Company are required in order for the Board of Directors to comply with its fiduciary duties under applicable law). Notwithstanding anything contained in this Agreement to the contrary, nothing contained from and after the date hereof, each Shareholder shall promptly advise Vestar/Xxxx orally and in this Agreement shall prevent writing of the board receipt by any of directors them (or any of Qorus, the other entities or their respective representatives from, prior persons referred to the Closing above) of any Transaction Proposal (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only it being understood that to the extent that received in each such case referred their respective capacities as officer or director of the Company, their obligation to in clause (B), (Cso advise Vestar/Xxxx shall be governed by the Merger Agreement) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action any inquiry which is necessary likely to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing lead to consummate such Acquisition Proposal and that such Acquisition any Transaction Proposal, if consummated as proposedthe material terms and conditions of such Transaction Proposal or inquiry, is materially more favorable to and the stockholders identity of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making any such Transaction Proposal or inquiry. Each Shareholder will keep Vestar/Xxxx fully informed of the proposalstatus and details of any such Transaction Proposal or inquiry (it being understood that to the extent such transaction proposal was received in their respective capacities as officer or director of the Company, their obligation to so advise Vestar/Xxxx shall be governed by the Merger Agreement).
Appears in 1 contract
Samples: Voting Agreement (Gray Robert E)
No Solicitation. Other than with respect to the Transaction, each R&B recognizes CFW will incur substantial expenses in --------------- conducting a due diligence investigation of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members shallR&B, and that it shall direct in consideration for CFW's doing so, R&B agrees not to engage in, and to use its reasonable best efforts to cause its and its directors, officers, employees, agents and representatives of advisors, including counsel and financial advisors ("Representatives"), not to engage in, any negotiations (other representatives than with CFW) with respect to any proposals relating to any business combination, tender offer or acquisition transaction involving the acquisition by any third party of all or any material portion of the stock or assets of R&B (including any investment bankersuch proposal being a "Third-Party Offer" and any such acquisition being a "Third-Party Acquisition"), attorney from the date of this Agreement and continuing through the earlier of (i) the termination of this letter of agreement, (ii) the Closing Date, or accountant retained by it(iii) the termination of the Merger Agreement in accordance with its terms (the "Restricted Period"). In addition, R&B agrees that during the Restricted Period, it will not, and will not authorize or permit any of its Representatives, to directly or indirectly, solicit, consider or encourage any inquiries or proposals for (or which may reasonably be expected to lead to) any Third-Party Offer, or engage in discussions, conversations, negotiations or other communications with or provide any information to, or otherwise assist or cooperate with any person, entity or group for the purpose of, directly or indirectly, initiatesoliciting, solicit, encourage considering or otherwise facilitate encouraging any inquiries or the making Third-Party Offer. Immediately upon receipt of any proposal Third-Party Offer or offer with respect related inquiry during such period, R&B agrees to (i) 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 inform CFW of the assets fact of such Third-Party Offer or equity securities related inquiry, including, among other things, the identity of itthe third-party making such offer or inquiry. In consideration of the efforts and resources to be expended by CFW in its due diligence investigation of R&B and related matters, taken R&B agrees that in the event that it enters into a Third-Party Acquisition (or any letter of intent or other agreement relating to a Third-Party Acquisition) during the Restricted Period or within 12 months after the expiration of the Restricted Period with any third party with whom R&B or any Representative had contact during the Restricted Period in violation of this paragraph 6, R&B shall immediately become liable to pay, and pay, to CFW $2,500,000. The parties hereby agree that CFW would be substantially harmed as a wholeresult of such a violation of this paragraph 6, in a single transaction or series that the specific damages incurred by CFW would be difficult of related transactions or (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus further agree that they and their officers, directors, managers, or managing members shalldetermination, and that they this amount constitutes a reasonable estimate of such damages to be incurred by CFW and shall direct constitute reasonable liquidated damages for a breach of this paragraph 6. CFW 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 Qorus R&B agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Merger Agreement shall prevent set forth the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated terms and conditions under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing which R&B may furnish information in response to a request therefore by a person party who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt Third Party Offer. During the Restricted Period and prior to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation execution of the definitive Merger Agreement, R&B agrees to be bound by Qorus' board of directors the provisions of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalparagraph 6.
Appears in 1 contract
No Solicitation. Other than with respect 4.22 Until the earlier of the Closing Date and the date of the valid termination of this Agreement pursuant to the Transactionprovisions of clause 9.1 and subject to any scheduled exception to either clause 5.1(p) or clause 5.2(k), as the case may be, each of the Affiliated Companies and Qorus party agrees that neither it shall not (nor will it permit any of its officers, directors, managersagents, representatives or managing members shallaffiliates (and, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankerin the case of the Company, attorney or accountant retained by itthe shareholders set forth on Schedule 6) not to), directly or indirectlyindirectly (including, initiatein the case of the Company, by acting through or encouraging actions by Company shareholders who are not bound by this clause), take any of the following actions with any Third Party other than the other party and its designees: (i) solicit, seek, knowingly encourage or otherwise facilitate initiate any inquiries inquiry, negotiations or the making of discussions, or enter into any proposal or offer agreement, with respect to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving it, any Acquisition Proposal (ii) disclose any saleinformation not customarily disclosed to any Person concerning its (or any of its Subsidiary’s) business, leasetechnologies or properties, exchangeor afford to any Person access to their respective properties, mortgagetechnologies, pledgebooks or records, transfer or purchase of all or substantially all of the assets or equity securities of itnot customarily afforded such access, taken as a whole, in a single transaction or series of related transactions or (iii) assist or cooperate with any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 Third Party to make or implement an any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will party shall immediately cease and cause to be terminated any existing such negotiations, discussions or negotiations agreements (other than with any parties conducted heretofore with respect to any Acquisition Proposalthe other party) that are the subject matter of clause (i), (ii) or (iii) of this clause 4.22 at the date of this Agreement. Each of the Affiliated Companies and Qorus agree party agrees that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof event that it or any of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement its affiliates shall prevent the board of directors of Qorus, or their respective representatives fromreceive, prior to the Closing (A) complying Date or the valid termination of this Agreement in accordance with Rule 14e-2 promulgated under the Exchange Act with regard to clause 9.1, any offer, proposal, or request concerning an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a any request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations for disclosure or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to access as referenced in clause (B), (C) or (Dii) above, Qorus' board of directors determines in good faithit shall promptly notify the other party thereof, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated including information as proposed, is materially more favorable to the stockholders identity of Qorus from a financial point of view (the offeror or the party making any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the offer or proposal and the person making specific terms of such offer or proposal, as the proposalcase may be, and such other information related thereto as the other party may reasonably request. The parties hereto agree that irreparable damage would occur in the event that the provisions of this clause 4.22 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that a party shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this clause 4.22 and to enforce specifically the terms and provisions hereof in any court of the United States or any state having jurisdiction, this being in addition to any other remedy to which such party may be entitled at law or in equity.
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction(a) Neither Humble nor any of its Subsidiaries shall, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor authorize or permit any of its officers, directors, managers, directors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it) not to, directly it or indirectly, any of its Subsidiaries to initiate, solicit, encourage (including by way of furnishing information), or otherwise facilitate take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managerswhich constitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead to, directly or indirectly, engage in any negotiations concerningAcquisition Proposal (as defined below), or provide any confidential information enter into or data to, maintain or have any continue discussions with, or negotiate with any person relating in furtherance of such inquiries or to obtain an Acquisition Proposal, or otherwise facilitate agree to or endorse any effort or attempt to make or implement an Acquisition Proposal. Each , and Humble shall notify Sterling orally (within one business day) and in writing (as promptly as practicable), in reasonable detail, as to any inquiries and proposals which it or any of the Affiliated Companies and Qorus agree its representatives or agents may receive; provided, however, that they will immediately cease and (i) Humble may furnish or cause to be terminated any existing furnished confidential and non-public information concerning Humble and its businesses, properties or assets to a third party (subject to execution by such third party of a confidentiality agreement containing confidentiality provisions substantially similar to those of the letter agreement entered into between Humble and Sterling dated December 8, 1997), (ii) following the execution of such a confidentiality agreement, Humble may engage in discussions or negotiations with any parties conducted heretofore a third party executing such a confidentiality agreement, (iii) following receipt of an Acquisition Proposal, Humble may take and disclose to its stockholders a position with respect to any such Acquisition Proposal. Each , including, if such Acquisition Proposal is a tender offer, the Humble Board may take and disclose to Humble's stockholders a position contemplated by Rule 14e-2 under the Exchange Act, and/or (iv) following receipt of an Acquisition Proposal, the Affiliated Companies and Qorus agree that they will take the necessary steps Humble Board may withdraw or modify its recommendation referred to promptly inform the individuals or entities in Section 5.26, but in each case referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing foregoing clauses (Ai) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; through (Biv) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines the Humble Board shall conclude in good faith, after consultation with faith on the basis of advice from outside legal counsel that such action is necessary required in order for the Humble Board to act in a manner consistent with the directors' satisfy its fiduciary duties obligations under applicable law law; provided, further, that the Humble Board shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after reasonable notice to and determines in good faith after consultation with its financial advisors Sterling with respect to such action and that the person or group making Humble Board shall continue to consult with Sterling after taking such action and, in addition, if the Humble Board receives an Acquisition Proposal has adequate sources or any request for confidential and non- public information or for access to the properties, books or records of financing to consummate such Acquisition Proposal and that such Humble for the purpose of making, or in connection with, an Acquisition Proposal, if consummated then Humble shall promptly inform Sterling as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects provided above of the terms and conditions of such proposal or request and the identity of the person making it. As used herein, the proposal.term "Acquisition Proposal" means: (x) any acquisition or purchase of a significant amount of the assets of Humble, or any equity interest in Humble or any take-over bid or tender offer
Appears in 1 contract
Samples: Agreement and Plan of Consolidation (Sterling Bancshares Inc)
No Solicitation. Other than (a) From the date hereof until the earlier of the Effective Time or the date on which this Agreement is terminated in accordance with the terms hereof, neither A nor B shall, and neither shall permit any of its subsidiaries, its or its subsidiaries' Representatives or any of the respective affiliates of the foregoing, to (i) solicit, initiate or encourage the submission of, any Takeover Proposal; (ii) enter into any binding or non-binding agreement with respect to any Takeover Proposal (other than a confidentiality agreement to the Transaction, each of the Affiliated Companies and Qorus agrees that neither it nor extent information is permitted to be furnished to any of its officers, directors, managersperson pursuant to this Section 7.04(a)); (iii) participate in any discussions or negotiations regarding, or managing members shallfurnish to any person any information with respect to or in connection with, and that it shall direct and use its reasonable best efforts or take any other action to cause its and 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 that constitutes, or offer may reasonably be expected to lead to, any Takeover Proposal; (iv) amend or grant any waiver or release under any confidentiality, standstill or similar agreement, in each case relating to a Takeover Proposal; or (v) with respect to (i) 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 B and except 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore expressly contemplated by this Agreement with respect to the B Merger, amend or grant any Acquisition Proposal. Each of waiver or release or approve any transaction or redeem any rights under the Affiliated Companies and Qorus agree B Rights Agreement; provided, however, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, A or B or their respective representatives from, prior to the Closing Boards of Directors from (Ai) complying with Rule Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with publicly disclosing the Exchange Act; (B) providing information in response to existence of a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Takeover Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) required by applicable Law or (Dii) abovefurnishing non-public information to, Qorus' board or entering into discussions or negotiations with, any person or entity in connection with an unsolicited bona fide written Takeover Proposal by such person or entity to the Board of directors determines Directors of A or B, as the case may be, if (x) the failure to take such action would, in the good faithfaith judgment of the Board of Directors of A or, after consultation with outside in the case of B, both the Board of Directors of B and (if appropriate) the Special Committee, as the case may be, taking into consideration the advice of independent legal counsel that such action is necessary to act of A or, in a manner consistent with the directors' case of B, both independent legal counsel of B and (if appropriate) separate independent legal counsel of the Special Committee, as the case may be, violate the fiduciary duties under applicable law of the Board of Directors of A or, in the case of B, both the Board of Directors of B and determines in good faith after consultation with its financial advisors that (if appropriate) the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition ProposalSpecial Committee, if consummated as proposedthe case may be, is materially more favorable to the stockholders of Qorus from A or B, as the case may be, under applicable Law, (y) (1) financing for such Takeover Proposal, to the extent required, is either then committed and so evidenced by binding written documentation or, in the good faith judgment (taking into consideration the advice of a financial point advisor of view nationally recognized standing) of such Board of Directors (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"and, in the case of B, (if appropriate) and determines in good faith that such Superior Proposal the Special Committee), is reasonably capable of being consummatedobtained by such person or entity within a reasonable time period, and (2) the Board of Directors of A or, in the case of B, both the Board of Directors of B and (if appropriate) the Special Committee, as the case may be, have determined in good faith that (A) such Takeover Proposal, if accepted, would be reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal.proposal and (B) after consultation with and considering the advice of independent financial advisors of national standing and after taking into account the strategic benefits to be derived from the Mergers and the long term prospects of the Company in the event the Mergers were consummated and after consideration of other matters it deems relevant, would, if consummated, result in a transaction more favorable to the stockholders of A or B, as the case may be, from a financial point of view than the Mergers (a Takeover Proposal satisfying such criteria being a "Superior Proposal"), and (z) prior to furnishing such non-public
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction(a) Ocean, each of the Affiliated Companies its Affiliates and Qorus agrees that neither it nor any of its their respective officers, directors, managersemployees, representatives and agents shall immediately terminate any discussions or managing members shall, and that it shall direct and use its reasonable best efforts to cause its negotiations with any third party concerning an Acquisition Offer. Ocean and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not toAffiliates shall not, directly or indirectly, through any officer, director, employee, stockholder, financial advisor, attorney, representative, subsidiary or agent of such Person (i) take any action to solicit, initiate, solicitfacilitate, continue or encourage or otherwise facilitate any inquiries or the making of any proposals that constitute, or could reasonably be expected to lead to, a proposal or offer with respect to (i) for a merger, reorganizationconsolidation, share exchangebusiness combination, consolidation sale of substantial assets, sale of shares of capital stock or other securities (including by way of a tender offer) or similar transaction involving itOcean , (except with respect to the spin off or sale thereof prior to the Closing) other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to as an “ACQUISITION OFFER”), (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 Qorus 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 Qorus 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 discussions or negotiations (whether such discussions or negotiations are initiated by Ocean, such other Person or otherwise) concerning, or provide any confidential non-public information or data to any Person relating to, or have any discussions with, any person relating to an possible Acquisition ProposalOffer, or otherwise facilitate any effort (iii) agree to, enter into a letter of intent or attempt to make similar document or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to recommend any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree Offer; PROVIDED, HOWEVER, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of QorusOcean, or their respective representatives fromits Board of Directors, prior to the Closing extent such Board of Directors determines, in good faith and on a reasonable basis by a majority vote (after consultation with independent legal advisors), that such Board of Directors’ fiduciary duties under applicable law require it to do so, from (A) furnishing non-public information to, or entering into discussions or negotiations with, any Person in connection with an unsolicited, bona fide, written Acquisition Offer by such Person or recommending an unsolicited, bona fide, written Acquisition Offer by such Person to the stockholders of Ocean, if and only to the extent that (1) the Board of Directors of Ocean determines in good faith and on a reasonable basis by majority vote (after consultation with independent financial and legal advisors) that such Acquisition Offer is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable to Ocean’s stockholders from a financial point of view than the Exchange and the other transactions contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a “SUPERIOR PROPOSAL”) and the Board of Directors of Ocean determines in good faith and on a reasonable basis by majority vote (after consultation with independent legal advisors) that such action is necessary for such Board of Directors to comply with its fiduciary duties to stockholders under applicable law and (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such Person, (x) such Board of Directors receives form such Person an executed confidentiality agreement, (y) such non-public information has been previously delivered to Ocean, and (z) Ocean advises the Company in writing of such disclosure or discussions or negotiations, including the Person to whom disclosed or with whom discussions or negotiations will occur; or (B) complying with Rule Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition ProposalOffer. Ocean shall use its best efforts to ensure that the officers, if applicabledirectors, and Affiliates of Ocean and its subsidiaries and any investment banker or otherwise complying with other financial advisor or representative retained by Ocean or any of its subsidiaries are aware of the Exchange Act; (B) providing information restrictions described in response this Section 7.12 Without limiting the foregoing, it is understood that any violations of the restrictions set forth in this Section 7.12 by any officer, director, employee, financial advisor, attorney, representative, subsidiary, agent or Affiliate of the Company, when acting on behalf of Ocean or any of its subsidiaries, shall be deemed to be a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors breach of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalSection 7.12 by Ocean.
Appears in 1 contract
Samples: Securities Exchange Agreement (Ocean West Holding Corp)
No Solicitation. Other than with respect to 6.11.1 From and after the Transactiondate hereof until the termination of this Agreement, each of the Affiliated Companies and Qorus agrees that neither it FCB, nor any FCB Subsidiary, nor any of its their respective officers, directors, managersemployees, or managing members shallrepresentatives, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including affiliates including, without limitation, any investment banker, attorney or accountant retained by it) not toFCB or any of the FCB Subsidiaries (collectively, “Representatives”), will, directly or indirectly, initiate, solicit, solicit or knowingly encourage (including by way of furnishing non-public information or otherwise facilitate assistance) any inquiries or the making of any proposal that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal (as defined by Section 6.11.2), or enter into or maintain or continue discussions or negotiate with respect any Person in furtherance of such inquiries or to (i) a merger, reorganization, share exchange, consolidation obtain an Acquisition Proposal or similar transaction involving it, (ii) agree to or endorse 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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each , or authorize or permit any of the Affiliated Companies and Qorus further agree that they and their its officers, directors, managersor employees or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or managing members shallother representative retained by any of its Subsidiaries to take any such action, and that they FCB shall direct notify BHLB orally and use their reasonable best efforts to cause their agents and representatives not to, directly in writing (as promptly as practicable but no later than one business day of receipt of such inquiry or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person proposal) of all of the relevant details relating to an Acquisition Proposal, all inquiries and proposals which FCB or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause FCB Subsidiaries or any of their respective officers, directors or employees, or, to be terminated any existing discussions FCB’s Knowledge, investment bankers, financial advisors, attorneys, accountants or negotiations with any parties conducted heretofore with respect other representatives of FCB may receive relating to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree such matters; provided, however, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement Section 6.11 shall prevent prohibit the board Board of directors Directors of Qorus, FCB from (i) complying with its disclosure obligations under federal or their respective representatives from, state law; or (ii) prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposalreceipt of FCB Shareholder Approval, if applicablefurnishing information to, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide entering into discussions or negotiations with, any Person or entity that makes an unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each (A) such case referred to in clause Acquisition Proposal did not result from a breach of this Section 6.11 by FCB, (B), (C) the Board of Directors of FCB or (D) above, Qorus' board of directors determines any appropriate committee thereof has determined in its good faithfaith judgment, after consultation with FCB’s financial advisor and outside legal counsel counsel, that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources is reasonably likely to be consummated in accordance with its terms, taking into account all legal, financial (including the financing terms thereof) and regulatory aspects of financing to consummate the proposal and the Person making the proposal, and (C) such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially reasonably likely to result in a transaction more favorable to the stockholders of Qorus FCB shareholders from a financial point of view than the Merger (any taking into account all relevant factors, including, without limitation, the timing of consummation as compared to the Merger and after giving effect to all of the adjustments, if any, which may be offered by BHLB pursuant to Section 10.1.8) (such more favorable Acquisition Proposal proposal that satisfies clauses (A), (B) and (C) being referred to herein as a "“Superior Proposal"”); provided, however, that nothing contained in this Agreement shall prohibit FCB and, if applicable, any of its Representatives from (i) informing any Person of the existence of the provisions of this Section 6.11, (ii) contacting any Person solely to clarify the terms and conditions of an Acquisition Proposal, or (iii) otherwise disclosing any information to its shareholders that the FCB Board of Directors determines in good faith (after consultation with its outside legal counsel) that it is required to disclose in order to not breach its fiduciary duties to FCB’s shareholders under applicable law, subject to compliance with the requirements of this Section 6.11 and Section 6.12. FCB shall promptly, but in no event later than one (1) calendar day, notify BHLB of such Superior Proposal is reasonably capable inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with FCB or any of being consummatedits representatives indicating, taking into account legalin connection with such notice, financial, regulatory and other aspects the name of the proposal such Person and the person making material terms and conditions of any inquiries, proposals or offers, and receives from such Person an executed confidentiality agreement in form and substance identical in all material respects to the proposalConfidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Berkshire Hills Bancorp Inc)
No Solicitation. Other than with respect (a) From and after the date of this Agreement until the Appointment Time or termination of this Agreement pursuant to its terms, the TransactionCompany and its subsidiaries will not, each of the Affiliated Companies and Qorus agrees that neither it nor will they authorize or permit any of its their respective officers, directors, managers, affiliates or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney or accountant other advisor or representative retained by it) not any of them to, directly or indirectly, (i) solicit, initiate, solicit, knowingly encourage or otherwise induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations with a third party regarding, or furnish to any person any nonpublic information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except to refer them to the provisions of this Section 6.4(a), (iiv) a mergerapprove, reorganizationendorse or recommend any Acquisition Proposal, share exchange, consolidation subject to Section 6.1(c) and 6.1(d) or (v) enter into any letter of intent or similar transaction involving itdocument or any contract, (ii) agreement or commitment contemplating or otherwise relating to 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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal", subject to Section 6.1(c) and 6.1(d). Each of ; provided, however, that prior to the Affiliated Companies Appointment Time, if required under Delaware Law, this Section 6.4(a) shall not prohibit the Company from furnishing nonpublic information regarding the Company and Qorus 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 its subsidiaries to, or have any entering into discussions with, any person relating or group who has submitted (and not withdrawn) to the Company an unsolicited, written, bona fide Acquisition Proposal that the Board of Directors of the Company reasonably concludes (after consultation with a financial advisor of national standing) constitutes, or is reasonably likely to lead to, a Superior Offer; provided further that (1) neither the Company nor any representative of the Company and its subsidiaries shall have violated any of the restrictions set forth in this Section 6.4, (2) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that such action is required in order for the Board of Directors of the Company to comply with its fiduciary obligations to the Company's stockholders under applicable law, (3) prior to furnishing any such nonpublic information to, or entering into any such discussions with, such person or group, the Company gives Parent written notice of the identity of such person or group and all of the material terms and conditions of such Acquisition Proposal, or otherwise facilitate any effort or attempt including providing to make or implement an Parent a written copy of such Acquisition Proposal. Each , and of the Affiliated Companies Company's intention to furnish nonpublic information to, or enter into discussions with, such person or group, and Qorus agree that they the Company receives from such person or group an executed confidentiality agreement containing terms at least as restrictive with regard to the Company's confidential information as the Confidentiality Agreement, and (4) contemporaneously with furnishing any 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). The Company and its subsidiaries will immediately cease any and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Progress Software Corp /Ma)
No Solicitation. Other than with respect to (a) From and after the Transactiondate hereof until the Effective Time, each of the Affiliated Companies and Qorus agrees that neither Company shall not, nor shall it nor authorize any of its officers, directors, managersemployees, agents, investment bankers, attorneys, financial advisors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including collectively, "Company Representatives") to (i) solicit, initiate or knowingly encourage the submission of, any investment bankerAcquisition Proposal, attorney (ii) enter into any agreement with respect to any Acquisition Proposal, or accountant retained by it(iii) not participate in any discussions or negotiations regarding, or furnish to any Person any non-public information with respect to, directly or indirectly, initiate, solicit, encourage or otherwise take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes or offer with respect would reasonably be expected to lead to, an Acquisition Proposal; provided, however, that, notwithstanding anything to the contrary in this Agreement, (i) the Company may participate in discussions or negotiations with, and may furnish information concerning the Company and its business, properties and assets to, a mergerthird party who, reorganizationwithout any solicitation by the Company or any Company Representatives after the date of this Agreement, seeks to engage in such discussions or negotiations or requests such information, if (1) the Board of Directors of the Company determines, based on the advice of the Company's outside legal counsel, that failing to engage in such discussion or negotiations or provide such information would reasonably be expected to violate the fiduciary duties of the Board of Directors of the Company to its stockholders, (2) prior to engaging in discussions or negotiations with, or furnishing information to, such Third Party, the Company shall receive from such Third Party an executed confidentiality agreement in reasonably customary form on terms not more favorable to such Person or entity than the terms contained in the Confidentiality Agreement, and (3) the Acquisition Proposal would result in the holders of Company Common Stock being entitled to receive consideration which, in the aggregate, would be greater than $12.50 per share exchange(collectively, consolidation or similar transaction involving ita "Permitted Acquisition Proposal"), and (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase the Board of all or substantially all Directors of the assets or equity securities of it, taken as Company may take and disclose to the Company's stockholders a whole, in position with regard to 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 Qorus 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 contemplated by Rules 14d-9 and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A14e-2(a) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each may make such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable disclosure to the stockholders of Qorus from a financial point the Company as may be required under Applicable Law; provided, that the Board of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects Directors of the proposal and Company shall not recommend that the person making stockholders of the proposalCompany tender their shares of Company Common Stock unless such recommendation is permitted by Section 8.5(d).
Appears in 1 contract
No Solicitation. Other than with respect to (a) Neither the TransactionCompany nor any of its Subsidiaries shall, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor authorize or permit any of its officers, directors, managers, directors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it) not to, directly it or indirectly, any of its Subsidiaries to initiate, solicit, encourage (including by way of furnishing information), or otherwise facilitate take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managerswhich constitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead to, directly or indirectly, engage in any negotiations concerningAcquisition Proposal (as defined herein), or provide any confidential information enter into or data to, maintain or have any continue discussions with, or negotiate with any person relating in furtherance of such inquiries or to obtain an Acquisition Proposal, or otherwise facilitate agree to or endorse any effort or attempt to make or implement an Acquisition Proposal. Each , and the Company shall notify Sterling orally (within one business day) and in writing (as promptly as practicable), in reasonable detail, as to any inquiries and proposals which it or any of its Subsidiaries or any of their respective representatives or agents may receive; provided, however, that (i) the Affiliated Companies and Qorus agree that they will immediately cease and Company may furnish or cause to be terminated any existing furnished confidential and non-public information concerning the Company and its businesses, properties or assets to a third party (subject to execution by such third party of a confidentiality agreement containing confidentiality provisions substantially similar to those of the letter agreement entered into between the Company and Sterling dated September 20, 2000), (ii) following the execution of such a confidentiality agreement, the Company may engage in discussions or negotiations with any parties conducted heretofore a third party executing such an agreement, (iii) following receipt of an Acquisition Proposal, the Company may take and disclose to its stockholders a position with respect to any such Acquisition Proposal. Each , including, if such Acquisition Proposal is a tender offer, the Company's Board may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act, and/or (iv) following receipt of an Acquisition Proposal, the Affiliated Companies and Qorus agree that they will take the necessary steps Company's Board may withdraw or modify its recommendation referred to promptly inform the individuals or entities in Section 5.25, but in each case referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing foregoing clauses (Ai) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; through (Biv) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines the Company's Board shall conclude in good faith, after consultation with faith (on the basis of advice from outside legal counsel counsel) that such action is necessary required in order for the Company's Board to act in a manner consistent with the directors' satisfy its fiduciary duties obligations under applicable law law; provided, further, that the Company's Board shall not take any of the foregoing actions referred to in clauses (i) through (iv) until after reasonable notice to and determines in good faith after consultation with its financial advisors Sterling with respect to such action and that the person or group making Company's Board shall continue to consult with Sterling after taking such action and, in addition, if the Company Board receives an Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal or any request for confidential and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.non-public information or for access to
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sterling Bancshares Inc)
No Solicitation. Other than with respect to (a) From and after the Transaction, each date of this Agreement until the earlier of the Affiliated Companies and Qorus agrees that neither it nor any Effective Time or the termination of its officersthis Agreement pursuant to Article VII, directors, managers, or managing members shall, and that it Target shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not tonot, directly or indirectly, through any officer, director, employee, representative or agent, (i) solicit, initiate, solicit, or encourage or otherwise facilitate any inquiries or the making of any proposals that constitute, or could reasonably be expected to lead to, a proposal or offer with respect to (i) for a merger, reorganizationconsolidation, share exchangebusiness combination, consolidation or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase sale of all or substantially all of the assets assets, sale of shares of capital stock (including without limitation by way of a tender offer) or equity securities similar transactions involving Target, other than the transactions contemplated by this Agreement (any of it, taken the foregoing inquiries or proposals being referred to in this Agreement 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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Takeover Proposal"). Each of the Affiliated Companies and Qorus 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, (ii) engage in any negotiations or discussions concerning, or provide any confidential non-public information to any person or data entity relating to, or have any discussions with, any person relating to an Acquisition Takeover Proposal, or otherwise facilitate (iii) agree to, approve or recommend any effort or attempt to make or implement an Acquisition Takeover Proposal. Each of the Affiliated Companies and Qorus agree ; provided, however, that they will immediately cease and cause to be terminated if, at any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, time prior to the Closing (A) complying with Rule 14e-2 promulgated under Effective Time, the Exchange Act with regard to an Acquisition ProposalBoard of Directors of the Target or Acquiror, if applicableas the case may be, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel counsel, that such action is necessary its fiduciary obligations to act in a manner consistent with the directors' fiduciary duties its respective stockholders under applicable law so requires, Target or Acquiror, as the case may be, in response to a Takeover Proposal which was not solicited by Target or Acquiror, as the case may be, subsequent to the date hereof (A) may furnish to any person information with respect to Target or Acquiror, as the case may be, pursuant to a customary confidentiality agreement, (B) may participate in negotiations regarding such Takeover Proposal and (C) subject to full compliance with this Section 5.1, may recommend a proposal to its stockholders which the Board of Directors of Target or Acquiror, as the case may be, determines in its good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing judgment to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially be more favorable to Target or Acquiror, as the stockholders of Qorus from a financial point of view case may be (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith ); provided, however that such Superior Proposal is reasonably capable party notifies the other within 24 hours of being consummated, taking into account legal, financial, regulatory and other aspects receipt of the proposal and the person making the proposalany Takeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ashford Com Inc)
No Solicitation. Other than with respect to From and after the Transactiondate of this Agreement, each of the Affiliated Companies and Qorus agrees that neither it Cliffs nor any of its officers, directors, managers, or managing members Cliffs Subsidiary shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly, initiatethrough any officer, solicitdirector, encourage employee, representative or otherwise facilitate agent of Cliffs or any of the Cliffs Subsidiaries, (i) solicit or knowingly encourage, including by way of furnishing information, the initiation of any inquiries or proposals regarding (A) any merger, tender offer, sale of shares of capital stock or similar business combination transactions involving Cliffs or the making of any proposal or offer with respect to Cliffs Subsidiaries (iother than (1) a merger, reorganization, share exchange, consolidation merger of one or similar transaction involving itmore wholly owned Cliffs Subsidiaries with or into another wholly owned Cliffs Subsidiary or Cliffs, (ii2) an issuance of Cliffs Common Stock in exchange for assets of another entity, or (3) a merger of a wholly owned Cliffs Subsidiary with or into another entity in which the surviving entity is a wholly owned Cliffs Subsidiary and the securities of such entity outstanding prior to such merger are converted into shares of Cliffs Common Stock; provided that the aggregate number of shares of Cliffs Common Stock issued in connection with any and all transactions effected in reliance upon clause (2) or (3) do not exceed 15% of the outstanding shares of Cliffs Common Stock as of the date hereof), or (B) any sale, lease, exchange, mortgage, pledge, transfer or purchase sale 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 2015% or more of the outstanding shares assets of Qorus Common Stock or Cliffs and the Company's Shares Cliffs Subsidiaries, taken as a whole (any such proposal or offer of the foregoing transactions being hereinafter referred to herein as an a "Cliffs Acquisition ProposalTransaction"). Each of the Affiliated Companies and Qorus further agree that they and , (ii) negotiate, explore or otherwise engage in discussions with any person (other than R&B Falcon, Sub or their respective directors, officers, directorsemployees, 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore representatives) with respect to any Cliffs Acquisition Proposal. Each of Transaction, or (iii) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Affiliated Companies and Qorus agree Merger or any other transactions contemplated by this Agreement; provided, however, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken nothing in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained 3.4 or elsewhere in this Agreement shall prevent the board members of directors the Board of Qorus, or their respective representatives from, prior Directors of Cliffs from (i) furnishing information to (but only pursuant to a confidentiality agreement substantially similar to the Closing Confidentiality Agreement between Cliffs and R&B Falcon dated August 7, 1998 (Athe "Confidentiality Agreement")) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any entering into discussions or negotiations or discussions with any person who has made a or group that makes an unsolicited bona fide unsolicited written proposal for a Cliffs Acquisition Proposal or otherwise facilitating any effort or attempt to implement Transaction (an Acquisition "Alternative Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal"), if, and only to the extent that in each such case referred to in clause (B)that, (CA) or (D) abovethe Board of Directors of Cliffs, Qorus' board based on the written opinion of directors outside counsel, determines in good faith, after consultation with outside legal counsel faith that such action is necessary required for the Board of Directors of Cliffs to act in a manner consistent comply with the directors' its fiduciary duties under applicable law to stockholders imposed by law, and (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Cliffs provides written notice to R&B Falcon to the effect that it is furnishing information to, or entering into negotiations with, such person or group; (ii) failing to make or withdrawing or modifying its recommendation referred to in Section 3.3 if (A) there exists an Alternative Proposal and the Board of Directors of Cliffs, based on the written opinion of outside counsel, determines in good faith after consultation that such action is required for the Board of Directors of Cliffs to comply with its financial advisors fiduciary duties to stockholders imposed by law, (B) either such Alternative Proposal is not conditioned on the receipt of financing or the Board of Directors of Cliffs has reasonably concluded in good faith that the person or group making such Acquisition Alternative Proposal has will have adequate sources of financing to consummate such Acquisition Proposal and Alternative Proposal, (C) the Board of Directors of Cliffs has reasonably determined in good faith that such Acquisition Proposal, if consummated as proposed, Alternative Proposal is materially more favorable to the stockholders of Qorus Cliffs than the Merger, and (D) the Board of Directors of Cliffs has received a written opinion from a nationally-recognized investment banking firm to the effect that the consideration to be received by stockholders of Cliffs in connection with such Alternative Proposal is superior, from a financial point of view (any such more favorable Acquisition Proposal being referred view, to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.consideration to be received by them in
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus The Company agrees that neither it nor any of its Subsidiaries nor any of their respective officers, directors, managersadvisors, or managing members shallagents, accountants, consultants, employees, investment bankers and that it legal counsel (collectively, "Representatives") shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not to, directly or indirectly: (i) solicit, initiate, solicitor knowingly encourage, encourage facilitate or otherwise induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (as defined in Section 6.1(g)(i)); (ii) participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or offer with respect may reasonably be expected to (i) a mergerlead to, 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 Acquisition Proposal; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore Person with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement , except as to the contraryexistence of these provisions; (iv) approve, nothing contained in this Agreement shall prevent the board of directors of Qorus, endorse or their respective representatives from, prior recommend any Acquisition Proposal (except to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard extent specifically permitted pursuant to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition ProposalSection 6.1(e)); or (Dv) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition intent or similar document or any contract agreement or other similar agreement commitment contemplating or otherwise relating to any Acquisition Proposal, ifProposal or any transaction contemplated thereby. The Company shall immediately terminate, and only shall cause each of its Subsidiaries and its and their Representatives to immediately terminate, all activities, discussions or negotiations, if any, with any third party with respect to, or any that could reasonably be expected to lead to or contemplate the extent possibility of, an Acquisition Proposal. The Company shall promptly request that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in person which has heretofore executed a manner consistent confidentiality agreement with the directors' fiduciary duties under applicable law and determines Company or any of its affiliates or Subsidiaries or any of its or their Representatives with respect to such Person's consideration of a possible Acquisition Proposal to promptly return or destroy (which destruction the Company shall request be certified in good faith after consultation with writing by such person) all confidential information heretofore furnished by the Company or any of its financial advisors that the affiliates or Subsidiaries or any of its or their Representatives to such person or group making such Acquisition Proposal has adequate sources any of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders its affiliates or Subsidiaries or any of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalits or their Representatives.
Appears in 1 contract
No Solicitation. Other than with respect to (a) From and after the Transactiondate hereof, except as specifically permitted in this Section 6.3, (1) the Company shall not, and shall cause each of its Subsidiaries not to, and (2) the Affiliated Companies Company shall not, and Qorus agrees that neither it nor shall cause each of its Subsidiaries not to, authorize or permit any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not their Representatives to, directly or indirectly: (i) solicit, initiate, solicitknowingly facilitate or knowingly encourage the submission or announcement of any Acquisition Proposal or any inquiries with respect to the submission or announcement of any Acquisition Proposal; (ii) participate in discussions or negotiations regarding, encourage or furnish any non-public information relating to, the Company or any of its Subsidiaries with respect to, or otherwise facilitate cooperate in any inquiries way with, any effort or the making attempt by any Person (other than Parent or its Affiliates) to make an inquiry in respect of or make any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managersconstitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (Ciii) engaging except for confidentiality agreements entered into pursuant to and in any negotiations accordance with the proviso set forth in clause (d)(iv)(A) of this Section 6.3, enter into a letter of intent, memorandum of understanding or discussions other agreement with any person who has made a bona fide unsolicited Acquisition Proposal Person, other than Parent or otherwise facilitating any effort or attempt its Affiliates, relating to implement an Acquisition Proposal; or (Div) withdrawing waive any Standstill Agreement (as defined below) or modifying voting restriction contained in the approval organizational or recommendation governing documents of the Company or any of its Subsidiaries, in each case except (A) to the extent necessary to permit the Company to take an action it is otherwise permitted to take under Section 6.3(d) in full compliance with such provision or (B) to the extent that the Company has duly effected a Change of Board Recommendation in accordance with the terms hereof with respect to a proposal by Qorus' board the third party subject to such Standstill Agreement. The Company shall ensure that its Representatives are aware of directors the provisions of this Section 6.3, and any violation of the restrictions contained in this Section 6.3 by the Company’s Board of Directors (including any committee thereof) or any director, officer or employee of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.3 by the Company; provided that for all purposes of this Agreement, approving the Company shall not have violated any of its covenants contained in this Section 6.3 in the event that a non-officer employee of the Company or recommending any Acquisition Proposal of its Subsidiaries violates a covenant contained in this Section 6.3 and such violation does not lead to or causing the applicable party to enter into any letter of intent, agreement result in principle, acquisition agreement or other similar agreement relating to any an Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Firstcity Financial Corp)
No Solicitation. Other than with respect (a) From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to the TransactionArticle VIII, each of the Affiliated Companies Company and Qorus agrees that neither it its subsidiaries will not, nor will they authorize or permit any of its their respective officers, directors, managers, affiliates or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney or accountant other advisor or representative retained by it) not any of them to, directly or indirectly, (i) solicit, initiate, solicitinduce or knowingly encourage the making, encourage submission or otherwise announcement of any Acquisition Proposal (as defined below), (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or offer with respect may reasonably be expected to (i) a mergerlead to, reorganizationany Acquisition Proposal, 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 Qorus 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 Qorus 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, 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each , (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of the Affiliated Companies and Qorus agree intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction (as defined below); provided, -------- however, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement Section 6.4 shall prevent prohibit the board Company, ------- the Company Board (or any duly appointed and empowered committee thereof (a "Special Committee")) or any director of directors of Qorus, or their respective representatives from, prior to the Closing Company from (Ai) complying with Rule 14e-2 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, a tender or otherwise complying with the Exchange Act; (B) providing information in response to exchange offer not made after a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors violation of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B)Section 6.4, (Cii) making such disclosures to Company's stockholders as in the good faith judgment of the Company Board (or (D) above, Qorus' board of directors determines in good faitha Special Committee), after consultation with its outside legal counsel that such action counsel, is necessary to act in a manner consistent with the directors' fiduciary duties required under applicable law Law or (iii) in response to an unsolicited, bona fide written Acquisition Proposal that the Company Board (or a Special Committee) concludes in good faith constitutes a Superior Proposal (as defined below), engaging in discussions or participating in negotiations with and furnishing information to the party making such Acquisition Proposal to the extent (A) the Company Board determines in good faith after consultation with its financial advisors outside legal counsel that the person or group making such Acquisition Proposal has adequate sources of financing its fiduciary obligations under applicable Law require it to consummate such Acquisition Proposal and that such Acquisition Proposaldo so, if consummated as proposed, is materially more favorable (B) (x) at least two business days prior to the stockholders of Qorus from a financial point of view (furnishing any such more favorable Acquisition Proposal being referred nonpublic information to, or entering into discussions or negotiations with, such party, Company gives Parent written notice of Company's intention to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummatedfurnish nonpublic information to, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.or
Appears in 1 contract
Samples: Agreement and Plan of Merger (Agilent Technologies Inc)
No Solicitation. Other than with respect Prior to the TransactionEffective Time, each of the Affiliated Companies and Qorus ProHealthCare agrees that neither it it, any of its subsidiaries or any of their affiliates, nor any of its the respective directors, officers, directorsemployees, managers, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not toof the foregoing will, directly or indirectly, solicit, initiate, solicit, facilitate or knowingly encourage (including by way of furnishing or otherwise facilitate disclosing non-public information) any inquiries or the making of any proposal or offer with respect to (i) a any merger, reorganization, share exchange, consolidation or similar transaction other business combination involving itProHealthCare, (ii) the Company or any saleother subsidiary of ProHealthCare or the acquisition of any securities of, lease, exchange, mortgage, pledge, transfer or purchase of all or substantially all any significant assets of, ProHealthCare, the Company or any other subsidiary of the assets or equity securities of itProHealthCare, 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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalTransaction")) or enter into or continue any discussions or negotiations with any person (other than Parent and its representatives) with respect to any Acquisition Transaction or enter into any agreement, arrangement or understanding with respect to any such Acquisition Transaction or which would require it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this agreement. Each ProHealthCare and the Company agree that as of the Affiliated Companies and Qorus further agree that they date of this agreement, they, and their affiliates, and the respective directors, officers, directorsemployees, 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 Qorus agree that they will foregoing, shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties person (other than Parent and its representatives) conducted heretofore with respect to any Acquisition ProposalTransaction. Each ProHealthCare and the Company agree to immediately advise Parent in writing of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals any inquiries or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contraryproposals received by, nothing contained in this Agreement shall prevent the board of directors of Qorusany information requested from, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions sought to be initiated or continued with, any of ProHealthCare, its subsidiaries or affiliates, or any of the respective directors, officers, employees, agents or representatives of the foregoing, in each case from a person (other than Parent and its representatives) with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt respect to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, ifTransaction, and only the terms thereof, including the identity of such third party, and to update on an ongoing basis or upon Parent's request, the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalstatus thereof.
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction, each (a) Each of the Affiliated Companies ACI and Qorus Bowater agrees that neither it nor shall not, and it shall not permit any of its officers, directors, managers, Subsidiaries or managing members shallany of the officers or directors of it or its Subsidiaries to, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ employees, agents and other representatives (including any investment banker, attorney or accountant retained by itit or any of its Subsidiaries) not to, directly or indirectly, initiate, solicit, solicit or otherwise knowingly encourage or otherwise facilitate any inquiries or the making by any third party (other than the other party hereto and/or its Subsidiaries and their respective representatives) (a “Third Party”) of any proposal or offer with respect to (i) a purchase, merger, reorganization, share exchange, consolidation consolidation, amalgamation, arrangement, business combination, liquidation, dissolution, recapitalization or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer 20% or purchase of all or substantially all more of the consolidated assets of ACI or equity Bowater (including by means of a transaction with respect to securities of it, taken as a whole, in a single transaction such party or series of related transactions its Subsidiaries) or (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus Common Stock any class of equity securities of ACI or the Company's Shares Bowater (any such proposal or offer being hereinafter referred to as an "“Acquisition Proposal"”, it being understood that none of the transactions contemplated by this Agreement or set forth in Section 6.01 of the Bowater Disclosure Schedule or Section 6.02 of the ACI Disclosure Schedule, as applicable, shall be deemed to constitute an Acquisition Proposal). Each of ACI and Bowater further agrees that neither it nor any of its Subsidiaries nor any of the Affiliated Companies officers and Qorus further agree that they and their officers, directors, managers, directors of it or managing members its Subsidiaries shall, and that they it shall direct and use their reasonable best efforts to cause their its and its Subsidiaries’ employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, except as permitted by Section 6.05(b) (i) engage in any negotiations concerningor discussions with, or provide any confidential information or data to, or have any discussions with, any person Third Party relating to an Acquisition Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause , (ii) approve or recommend, or propose publicly to be terminated any existing discussions approve or negotiations with any parties conducted heretofore with respect to recommend, any Acquisition Proposal. Each , (iii) waive, amend or otherwise modify any confidentiality, standstill or similar obligation of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals any Third Party or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus(iv) execute or enter into, or their respective representatives from, prior publicly propose to the Closing (A) complying accept or enter into an agreement with Rule 14e-2 promulgated under the Exchange Act with regard respect to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to including a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, option agreement, merger agreement, acquisition agreement or other similar agreement relating to any (whether binding or not) in furtherance of an Acquisition Proposal, if, and only Proposal (other than a confidentiality agreement to the extent that in each such case referred to in clause (Bpermitted by Section 6.05(b), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal).
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction(a) The Company shall not, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor permit any of its officers, directors, managerssubsidiaries to, or managing members shallauthorize or permit any director, and that it shall direct and use officer or employee of the Company or any of its reasonable best efforts to cause its and its agents and other representatives (including subsidiaries or any investment banker, attorney attorney, accountant or accountant retained by it) not other advisor or representative of the Company or any of its subsidiaries to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (i) a mergersolicit, reorganizationinitiate or encourage, share exchangeor take any other action knowingly to facilitate, consolidation any Takeover Proposal (as defined below) or similar transaction involving it, (ii) any saleenter into, lease, exchange, mortgage, pledge, transfer continue 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 Qorus 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 Qorus 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 otherwise participate 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with regarding, or furnish to any parties conducted heretofore person any information with respect to, any Takeover Proposal; provided, however, that if, at any time prior to any Acquisition Proposal. Each obtaining the Shareholder Approval, the Board of Directors of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors Company determines in good faith, after consultation with outside legal counsel counsel, that such action it is necessary to act do so in a manner consistent order to comply with the directors' its fiduciary duties to the Company's shareholders under applicable law law, the Company and determines its representatives may, in good faith after consultation response to a Superior Proposal (as defined in Section 4.02(b)) that was unsolicited and that did not otherwise result from a breach of this Section 4.02(a), and subject to compliance with Section 4.02(c), (x) furnish information with respect to the Company and its financial advisors that the subsidiaries to any person or group making such Acquisition Superior Proposal has adequate sources of financing (and its representatives) pursuant to consummate such Acquisition Proposal a customary confidentiality agreement (which confidentiality agreement contains terms that are equivalent to, and that such Acquisition Proposal, if consummated as proposed, is materially more in no respect less favorable to the stockholders Company than, the terms of Qorus the Confidentiality Agreement dated June 25, 1999, between Parent and the Company (as it may be amended from a financial point of view time to time, the "Confidentiality Agreement")) and (any y) participate in discussions or negotiations with the person making such more favorable Acquisition Superior Proposal being referred to as a "(and its representatives) regarding such Superior Proposal"; and provided further that if the Company has received an unsolicited Takeover Proposal which (i) specifies consideration with a higher value than the consideration payable in the Merger, (ii) does not contain any term or condition that would result in such Takeover Proposal failing any of the criteria for a Superior Proposal set forth in the definition thereof and (iii) the Board of Directors of the Company determines in good faith that such Takeover Proposal might constitute a Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.but cannot definitively make such determination without
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sequent Computer Systems Inc /Or/)
No Solicitation. Other than with respect Prior to the public announcement of the Transaction, each Seller shall not enter into any Agreement with any Person to sell, convey, license or otherwise transfer any Purchased Assets. Following the public announcement of the Affiliated Companies Transaction and Qorus agrees that neither it nor any continuing until the earlier of (a) the Closing and (b) the termination of this Agreement pursuant to its officersterms, directorsin addition to the restriction set forth in the preceding sentence, managers, or managing members shallSeller shall not, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) 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 (i) a initiate, solicit or encourage (including by way of furnishing information regarding the Business or the Purchased Assets or Assumed Liabilities) any inquiries, or make any statements to third parties which may reasonably be expected to lead to any proposal concerning the sale of Seller, the Business or the Purchased Assets or Assumed Liabilities (whether by way of merger, reorganizationpurchase of capital shares, share exchange, consolidation purchase of assets or similar transaction involving it, otherwise) (a “Competing Transaction”); or (ii) hold any sale, lease, exchange, mortgage, pledge, transfer discussions 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) enter into any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 concerningagreements with, or provide any confidential information or data respond to, any third party concerning a proposed Competing Transaction or have cooperate in any discussions way with, any person relating to an Acquisition Proposalagree to, assist or otherwise participate in, solicit, consider, entertain, facilitate or encourage any effort or attempt by any third party to make do or implement an Acquisition Proposal. Each seek any of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated foregoing. If at any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, time prior to the earlier of (x) the Closing and (Ay) complying the termination of this Agreement pursuant to its terms, Seller or any Seller Representatives are approached in any manner by a third party concerning a Competing Transaction (a “Competing Party”), Seller shall promptly inform Purchaser regarding such contact and furnish Purchaser with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposala copy of any inquiry or proposal, or, if applicablenot in writing, or otherwise complying with a description thereof, including the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board name of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, ifsuch Competing Party, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects Seller shall keep Purchaser informed of the proposal status and the person making the proposaldetails of any future notices, requests, correspondence or communications related thereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pcm, Inc.)
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies (a) The Company and Qorus agrees that neither it nor any of its officers, directors, managersemployees, or managing members shall, representatives and that it agents shall direct and use its reasonable best efforts to cause its and 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 (i) 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations negotiations, if any, with any parties conducted heretofore with respect to any Acquisition Proposal. Each acquisition or exchange of all or any material portion of the Affiliated Companies and Qorus agree that they will take assets of, or any equity interest in, the necessary steps to promptly inform Company or any of its subsidiaries or any business combination with the individuals Company or entities referred to in the first sentence hereof any of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in its subsidiaries (except as contemplated by this Agreement to or in connection with the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives fromDisposition). The Company agrees that, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard Effective Time, it shall not, and shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, to an Acquisition Proposalsolicit, if applicableinitiate, encourage or facilitate, or otherwise complying with the Exchange Act; (B) providing furnish or disclose non-public information in response furtherance of, any inquiries or the making of any proposal with respect to a request therefore by a person who has made a bona fide unsolicited any Acquisition Proposal; Proposal (C) engaging as defined below), or negotiate, explore or otherwise engage in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal (other than Parent, its affiliates or otherwise facilitating any effort or attempt their respective directors, officers, employees, agents and representatives) with respect to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intentagreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; PROVIDED; HOWEVER, that the Company may furnish information, pursuant to a customary confidentiality agreement with terms not more favorable to such third party than the Confidentiality Agreement (as defined in principleSection 6.02), acquisition agreement or other similar agreement relating to any Acquisition Proposal, ifto, and only to negotiate or otherwise engage in discussions with, any party who delivers a bona fide written proposal for an Acquisition Proposal for which all necessary financing is then in the extent that in each such case referred to in clause (B)judgment of the Company's Independent Committee of the Board of Directors reasonably obtainable, (C) or (D) above, Qorus' board if the Company's Independent Committee of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and Board of Directors determines in good faith by a vote of a majority of the members of the Independent Committee of the Board of Directors that failing to take such action would create a reasonable possibility of a breach of the fiduciary duties of the Company's Board of Directors (after consultation with its outside legal counsel) and such a proposal is, in the written opinion of the Company's financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposaladvisor, if consummated as proposed, is materially more favorable to the Company's stockholders of Qorus from a financial point of view (any than the transactions contemplated by this Agreement as the same has been proposed to be amended by Parent pursuant to Section 5.02(b); PROVIDED, FURTHER, that nothing contained in this Section 5.02 shall prohibit the Company or its Board of Directors from making such more favorable Acquisition Proposal being referred disclosure to as a "Superior Proposal") and determines the Company's stockholders which, in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects the judgment of the proposal and Board of Directors of the person making the proposalCompany (after consultation with its outside legal counsel), may be required under applicable law.
Appears in 1 contract
No Solicitation. Other than with respect to the TransactionEncad will not, each nor will it permit any of the Affiliated Companies and Qorus agrees that neither its Subsidiaries to, nor will it nor authorize or permit any of its officers, directors, managers, directors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it) not it or by any of its Subsidiaries to, directly or indirectly, initiate, solicit, encourage (by way of furnishing non-public information or otherwise otherwise), negotiate or take any other action to facilitate any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any proposal or offer with respect to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase of acquire all or substantially all any substantial part of the business or assets of Encad or equity securities of itany of its Subsidiaries, taken as a whole, in a single transaction or series of related transactions or (iii) any tender offer or exchange offer for 20% 10 percent or more of the outstanding shares capital stock of Qorus Common Stock Encad or the Company's Shares of any Subsidiary, whether by merger, consolidation, purchase of assets, tender offer, investment, exchange, lease or otherwise, whether for cash, securities or any other consideration or combination thereof (any such proposal or offer transaction being hereinafter referred to as called an "Acquisition ProposalACQUISITION TRANSACTION"). Each of the Affiliated Companies and Qorus further , nor entertain, 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 indirectlyendorse, engage participate 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to or recommend any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contraryTransaction, nothing contained in this Agreement shall prevent the unless Encad's board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines concludes in good faith, after consultation with receiving written advice of independent outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors advisors, that the person or group making failure to take such Acquisition Proposal has adequate sources action would reasonably be expected to constitute breach of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable its fiduciary duty to the stockholders of Qorus from a Encad under applicable Laws. In the event that Encad, any of its Subsidiaries or any of its officers, directors, employees, investment bankers, financial point of view (advisors, attorneys, accountants or other representatives receives any such more favorable Acquisition Proposal being referred inquiries, proposals or offers as contemplated by this Section 6.6, Encad will within one Trading Day inform Kodak as to as a "Superior Proposal") that fact and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of furnish to Kodak the proposal and the person making the proposalspecifics thereof.
Appears in 1 contract
No Solicitation. Other than (a) From and after the date of this Agreement and until the earlier of the termination of this Agreement pursuant to Section 8.1 and the Effective Time, Target, its Subsidiaries, and their respective directors, officers, employees, representatives or agents will not, directly or indirectly, or otherwise: (i) solicit, knowingly encourage, initiate, review or participate in any negotiations or discussions with respect to the Transactionany offer, each indication of the Affiliated Companies and Qorus agrees that neither it nor any of its officersinterest or proposal, directorswhether oral, managerswritten, or managing members shallotherwise, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankerformal or informal, attorney or accountant retained by it) not to, directly or indirectly, initiateacquire all or any part of Target’s or its Subsidiaries’ business or assets of any kind, solicitwhether by purchase of assets, encourage exclusive license, purchase of stock, merger or other business combination, or otherwise facilitate (any inquiries or of the making of any proposal or offer with respect to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving it, foregoing being an “Competing Proposed Transaction”); (ii) disclose any saleinformation to any person concerning Target and its Subsidiaries and which Target believes or should reasonably know would be used for the purposes of formulating any offer, lease, exchange, mortgage, pledge, transfer indication of interest or purchase of all or substantially all of the assets or equity securities of it, taken as proposal for a whole, in a single transaction or series of related transactions or Competing Proposed Transaction; (iii) assist, cooperate with, facilitate or encourage any tender offer person to make any offer, indication of interest or exchange offer proposal for 20% or more of the outstanding shares of Qorus Common Stock or the Company's Shares a Competing Proposed Transaction (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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); (iv) discuss, engage in any negotiations concerningnegotiate, or provide any confidential information or data agree to, enter into a contract, arrangement or have understanding regarding, approve, recommend or endorse any discussions with, Competing Proposed Transaction; or (v) authorize or permit any person relating of Target’s Representatives to an Acquisition Proposal, or otherwise facilitate take any effort or attempt to make or implement an Acquisition Proposalsuch action. Each of the Affiliated Companies and Qorus agree that they Target will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties Persons conducted heretofore prior to or on the date hereof with respect to any Acquisition ProposalCompeting Proposed Transaction. Each If any Representative or Stockholder of the Affiliated Companies and Qorus agree Target, whether in such Person’s capacity as such or in any other capacity, takes any action that they will take the necessary steps Target is obligated pursuant to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in 5.2(a) to cause such Representative or Stockholder not to take, then Target, as applicable, shall be deemed for all purposes of this Agreement to the contrary, nothing contained in have breached this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (BSection 5.2(a), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
No Solicitation. Other than with respect to Owen agrees that, during the Transactionterm of this Agreement, each of the Affiliated Companies it shall not, and Qorus agrees that neither it nor xxxll not authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, directorsemployees, managers, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not torepresentatives, directly or indirectly, to solicit, initiate, solicit, encourage or otherwise facilitate fa cilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal or offer with respect to (i) a any recapitalization, merger, reorganization, share exchange, consolidation or similar transaction other business combination involving itOwen, or acquisition of any capital stock (iiother than upon exercise of Xxxn Options which are outstanding as of the date hereof) or any sale, lease, exchange, mortgage, pledge, transfer or purchase of all or substantially all materxxx portion of the assets (except for acquisition of assets in the ordinary course of business consistent with past practice) of Owen, 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 combination of the outstanding shares of Qorus Common Stock or the Company's Shares foregoing (any such proposal or offer being hereinafter referred to as an a "Acquisition ProposalCompeting Transaction"). Each , xx negotiate, explore or otherwise engage in discussions with any person (other than Cardinal, Subcorp or their respective directors, officers, employees, agents and representatives) with respect to any Competing Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; PROVIDED that, at any time prior to the approval of the Affiliated Companies and Qorus further agree that they and their officersMerger by the Owen Shareholders, directors, managers, or managing members shallOwen may furnish information to, and that they shall direct and use their reasonable best efforts to cause their agents and representatives not to, directly negotiate or indirectly, oxxxxwise engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions xxxxussions with, any person relating party who delivers a written proposal for a Competing Transaction which was not solicited or encouraged after the date of this Agreement if and so long as the Board of Directors of Owen determines in good faith by a majority vote, based upon consultatxxx and advice from its outside legal counsel that failing to an Acquisition Proposal, or otherwise facilitate any effort or attempt take such action is reasonably likely to make or implement an Acquisition Proposal. Each constitute a breach of the Affiliated Companies fiduciary duties of the Board of Directors of Owen under Applicable Law and Qorus agree determines that they such a proposal is, aftex xxnsulting with Smith Barney or RPR (or any other nationally recognized investment banxxxx xxxx), more favorable to Owen's Stockholders from a financial point of view than the transactioxx xxxtemplated by this Agreement (including any adjustment to the terms and conditions proposed by Cardinal in response to such Competing Transaction). Owen will immediately cease all existing activities, discussions and cause to be terminated any existing discussions or negotiations nxxxxiations with any parties conducted heretofore with respect to any Acquisition Proposalproposal for a Competing Transaction. Each of In the Affiliated Companies and Qorus agree event that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing approval of the Merger by the Owen Shareholders the Board of Directors of Owen receives advice of ouxxxxe legal counsel that failure to do so is xxxsonably like to result in breach of the fiduciary duties of the Owen Board of Directors under Applicable Law, the Board of Directors ox Xxen may (Asubject to this and the following sentences) complying withdraw or modxxx the Owen Board Recommendation and/or comply with Rule 14e-2 promulgated under unxxx the Exchange Act with regard respect to an Acquisition Proposala Competing Transaction, if applicable, provided that it gives Cardinal two business days prior written notice of its intention to do so (provided that the foregoing shall no way limit or otherwise complying with affect Cardinal's right to terminate this Agreement pursuant to Section 7.1(d)). Any such withdrawal or modification of the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying Owen Board Recommendation shall not change the approval of the Board ox Xxrectors of Owen for purposes of causing either the provisions of Article 10 of thx Xxen Articles or recommendation by Qorus' board any state takeover statute or other state law to be ixxxxlicable to the transactions contemplated hereby, including the Merger, the Owen Stock Option Agreement or the Support Agreements or change the obxxxxtion of directors Owen to present the Merger for approval at a duly called Owen Shareholxxxx Meeting on the earliest practicable date. From and axxxx the execution of this Agreement, approving Owen shall immediately advise Cardinal in writing of the receipt, direxxxx or recommending indirectly, of any Acquisition Proposal inquiries, discussions, negotiations, or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement proposals relating to any Acquisition Proposal, if, a Competing Transaction (including the specific terms thereof and only the identity of the other party or parties involved) and promptly furnish to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board Cardinal a copy of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred written proposal in addition to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalany information provided to or by any third party relating thereto.
Appears in 1 contract
No Solicitation. Other than with respect (a) The Company (and its Subsidiaries, and affiliates over which it exercises control) will not, and the Company (and its Subsidiaries, and affiliates over which it exercises control) will use their best efforts to the Transaction, each of the Affiliated Companies and Qorus agrees ensure that neither it nor any of its their respective officers, directors, managersemployees, or managing members shallinvestment bankers, and that it shall direct and use its reasonable best efforts to cause its and its agents attorneys, accountants and other representatives (including any investment banker, attorney or accountant retained by it) not toagents do not, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to : (i) a mergerinitiate, reorganizationsolicit or encourage, share exchangeor take any action to facilitate the making of, consolidation any offer or similar transaction involving itproposal which constitutes or is reasonably likely to lead to any Takeover Proposal (as defined below) of the Company or any Subsidiary or an inquiry with respect thereto, or, (ii) in the event of an unsolicited Takeover Proposal for the Company or any sale, lease, exchange, mortgage, pledge, transfer Subsidiary or purchase of all or substantially all affiliate 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 Qorus 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 Qorus 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 concerningor discussions with, or provide any confidential information or data to, any corporation, partnership, person or have other entity or group (other than Parent, any of its affiliates or representatives) (each, a "Person") relating to any Takeover Proposal, except in the case of clause (ii) above to the extent that (x) the Takeover Proposal is a bona fide written proposal submitted to the Company's Board of Directors and (y) the Company's Board of Directors deter- mines, after having received the oral or written opinion of outside legal counsel to the Company, that the failure to engage in such negotiations or discussions or provide such information would result in a breach of the Board of Directors' fiduciary duties under applicable law. The Company shall notify Parent and Sub orally and in writing of any such offers, proposals, inquiries or Takeover Proposals (including, without limitation, the material terms and conditions thereof and the identity of the Person making it), within 24 hours of the receipt thereof, and shall thereafter inform Parent on a reasonable basis of the status and content of any discussions withor negotiations with such a third party, including any person relating material changes to an Acquisition Proposalthe terms and conditions thereof. The Company shall, or otherwise facilitate any effort or attempt and shall cause its Subsidiaries and affiliates over which it exercises control, and will use best efforts to make or implement an Acquisition Proposal. Each of the Affiliated Companies ensure their respective officers, directors, employees, investment bankers, attorneys, accountants and Qorus agree that they will other agents to, immediately cease and cause to be terminated any existing all discussions or and negotiations that have taken place prior to the date hereof, if any, with any parties conducted heretofore with respect to any Acquisition ProposalTakeover Proposal relating to the Company. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken Nothing contained in this Section 6.7. Notwithstanding anything contained in this Agreement 5.6 shall prohibit the Company or its Board of Directors from taking and disclosing to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior its stockholders a position with respect to the Closing (Aa tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated disclosure as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalmay be required by applicable law.
Appears in 1 contract
No Solicitation. Other than with respect to (a) Neither the TransactionCompany nor any Company Subsidiary, each of the Affiliated Companies and Qorus agrees that neither it nor any of its their respective officers, directors, managersemployees, agents, affiliates, accountants, counsel, investment bankers, financial advisors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankercollectively, attorney or accountant retained by it"Representatives") not to, shall (i) directly or indirectly, initiate, solicitsolicit or encourage, encourage or otherwise take any action to facilitate any inquiries or the making of of, any proposal Takeover Proposal, or offer with respect to (i) 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 Qorus 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 Qorus 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, indirectly engage in any discussions or negotiations concerningwith, or provide any confidential information or data to, or have afford any discussions withaccess to the properties, books or records of the Company or any Company Subsidiary to, or otherwise assist, facilitate or encourage, any person (other than Parent or any affiliate or associate thereof) relating to an Acquisition any Takeover Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (Aiii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into approve any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Takeover Proposal; provided, ifhowever, that at any time prior to the Company Stockholders Meeting, the Company may, in response to a Takeover Proposal that is reasonably likely to result in a Superior Proposal (as defined below) and which was not solicited in violation of this Section 4.8(a), and only subject to providing Parent reasonable advance written notice of its decision to take such action (x) furnish information with respect to the extent that Company, or the Company Subsidiaries to any person making such Takeover Proposal pursuant to a customary confidentiality agreement on terms no less restrictive than those contained in the Confidentiality Agreement and (y) participate in discussions and negotiations regarding such Takeover Proposal but, in each such case referred to in clause (B)case, (C) or (D) above, Qorus' board only if the Company's Board of directors determines in good faithDirectors determines, after consultation with receiving the advice of its outside legal counsel counsel, that failure to furnish such action is necessary information or to act participate in such discussions or negotiations would be reasonably likely to result in a manner consistent with breach of the directors' fiduciary duties of the Board of Directors of the Company under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources Law. The Company shall keep Parent apprised of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") discussions and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalnegotiations promptly after they occur.
Appears in 1 contract
No Solicitation. Other than with respect to (a) Until the Transactiontermination of this Agreement, each without the prior written consent of Parent, from and after the Affiliated Companies date hereof, the Company will not, and Qorus agrees that neither it nor will not authorize or permit any of its Subsidiaries or their officers, directors, managersemployees, or managing members shall, financial advisors and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it"Representatives") not to, directly or indirectly, initiate, (i) solicit, initiate or --------------- encourage (including by way of furnishing information) or otherwise take any other action to facilitate knowingly any inquiries or the making of any proposal which constitutes or offer with respect may reasonably be expected to lead to an Acquisition Proposal (ias defined herein) a merger, reorganization, share exchange, consolidation or similar transaction involving itfrom any person, (ii) engage in any sale, lease, exchange, mortgage, pledge, transfer discussion 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 negotiations relating thereto or (iii) enter into any tender offer agreement with respect to, agree to, approve or exchange offer for 20% or more of recommend any Acquisition Proposal; provided, however, that notwithstanding any other provision hereof, the outstanding shares of Qorus Common Stock or Company may, (A) at any time prior to the time the Company's Shares stockholders 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 and its business, properties and assets to such party) who (without any such proposal solicitation, initiation, encouragement or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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 tonegotiation, directly or indirectly, engage by or with the Company or the Representatives after the date hereof) makes an unsolicited bona fide written Acquisition Proposal if, and only to the extent that, (1) after having received the advice of an independent financial advisor, that such Acquisition Proposal, if consummated, could result in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating a transaction that is more favorable from financial point of view to the Company's stockholders than the Merger (such an Acquisition Proposal, a "Superior Proposal"), and the Special Committee of ----------------- the Company's Board of Directors shall conclude in good faith, after considering applicable provisions of state law, on the basis of oral or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each written advice of outside counsel that such action is necessary for the Board of Directors of the Affiliated Companies Company to act in a manner consistent with its fiduciary duties under applicable law, and Qorus agree that they will immediately cease and cause (2) prior to be terminated any existing furnishing such information to or entering into discussions or negotiations with any parties conducted heretofore such person or entity, the Company receives from such person or entity an executed confidentiality agreement in customary form, and (3) the Company shall have fully complied with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing 4.13; (AB) complying comply with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposala tender or exchange offer, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; and/or (C) engaging accept a Superior Proposal from a third party, provided the Company terminates this Agreement pursuant to Section 6.1(h) hereof. 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 proposal to acquire in any negotiations manner a substantial equity interest in, or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects substantial portion of the proposal and Parent Common Stock beneficially owned by the person making the proposalCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Telespectrum Worldwide Inc)
No Solicitation. Other than with respect to the TransactionStockholder in his, each of the Affiliated Companies and Qorus agrees that neither it nor any of her or its officers, directors, managers, or managing members shallcapacity --------------- as such will not, and that it shall direct and use its reasonable best efforts to will cause its subsidiaries, partners, investment bankers, attorneys, accountants, and its other agents and other representatives of Stockholder (including such subsidiaries, partners, investment bankers, attorneys, accountants, agents and representatives of any investment banker, attorney or accountant retained by itperson are collectively referred to as the "Representatives" of such person) not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to indirectly (i) a mergerinitiate, reorganizationsolicit or encourage, share exchangeor take any action to facilitate the making of, consolidation any offer or similar transaction involving it, proposal which constitutes or is reasonably likely to lead to any Alternative Transaction (as defined in the Merger Agreement) or any inquiry with respect thereto or (ii) in the event of any sale, lease, exchange, mortgage, pledge, transfer unsolicited Alternative Transaction for the Company or purchase of all or substantially all any affiliate 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 Qorus 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 Qorus 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 concerningor discussions with, or provide any confidential information or data to, or have any discussions withperson (other than Xxxxxxxx.xxx, any of its affiliates or representatives) relating to any Alternative Transaction; provided, that Stockholder may engage in negotiations or discussions with or provide any information or data to, any such person relating to an Acquisition ProposalAlternative Transaction to the extent that Phone is permitted to engage in such activities pursuant to Section 4.2(a) of the Merger Agreement. Stockholder will, notify Xxxxxxxx.xxx orally and in writing of any such offers, proposals, or otherwise facilitate inquiries relating to the purchase or acquisition by any effort or attempt to make or implement an Acquisition Proposal. Each person of Securities (including, without limitation, the terms and conditions thereof and the identity of the Affiliated Companies person making it), within 24 hours of the receipt of such offers. Stockholder will, and Qorus agree that they will cause its Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any parties conducted prior to the date of this Voting Agreement without respect to any Alternative Transaction relating to the Company, other than discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies Xxxxxxxx.xxx and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or its affiliates and their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalRepresentatives.
Appears in 1 contract
Samples: Voting Agreement (Software Com Inc)
No Solicitation. Other (i) Seller hereby agrees not to, and shall cause its representatives not to: (A) solicit, initiate, assist or encourage the making by any Person (other than the Parties to this Agreement) of any Acquisition Proposal or (B) participate in any discussions or negotiations regarding, or furnish or disclose to any Person any information with respect to, any Acquisition Proposal; provided, however, that (x) neither Seller nor its representatives shall be in any way limited or restricted from discussing or negotiating, or otherwise taking any of the actions contemplated by subclauses (A) or (B) of this Section 6.1(c)(i) with respect to any transaction or proposal that does not involve the Business or that does not prevent Seller from completing the transactions contemplated by this Agreement (a “Non-Competing Transaction”), each (y) this Section 6.1(c) shall not be applicable in any respect to a transaction or proposal that is a Non-Competing Transaction (and any such transaction or proposal shall not be deemed to be an “Acquisition Proposal” for any purpose under this Agreement), and (z) for the avoidance of the Affiliated Companies and Qorus agrees that neither it nor doubt, in no event shall any payment be required under Section 11.3 as a result of any actions by Seller or any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and 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 (i) a mergerNon-Competing Transaction; provided, reorganizationfurther, share exchange, consolidation or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer or purchase of all or substantially all that prior to the receipt of the assets or equity securities of itRequired Seller Stockholder Vote, taken as a whole, in a single transaction or series of related transactions or (iiithis Section 6.1(c) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 prohibit Seller from furnishing nonpublic information or data regarding Seller to, or have any entering into discussions with, any person relating Person in response to an Acquisition Proposal, or otherwise facilitate a Superior Proposal if (1) neither Seller nor any effort or attempt to make or implement an Acquisition Proposal. Each representative of Seller shall have violated any of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken restrictions set forth in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary6.1(c), nothing contained in this Agreement shall prevent (2) the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines Seller concludes in good faith, after consultation with having taken into account the advice of its outside legal counsel counsel, that such action is necessary required in order for the board of directors of Seller to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation comply with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing fiduciary obligations to consummate such Acquisition Proposal Seller’s stockholders under Applicable Law, and that such Acquisition Proposal, if consummated as proposed, is materially more favorable (3) at least two (2) Business Days prior to the stockholders of Qorus from a financial point of view (furnishing any such more favorable Acquisition Proposal being referred to as nonpublic information to, or entering into discussions with, such Person, Seller gives Buyer written notice of the receipt of a "Superior Proposal") and determines in good faith that such Superior . For the avoidance of doubt, the transactions contemplated by the Transportation Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalshall be deemed to be “Non-Competing Transactions” for all purposes hereunder.
Appears in 1 contract
Samples: Asset Purchase Agreement (Bio Key International Inc)
No Solicitation. Other than with respect to From and after the Transactiondate hereof, each of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members shall, and that it Players shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not tonot, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent of such party (i) solicit, initiate, solicit, or encourage (including by way of furnishing information) or otherwise take any other action to facilitate knowingly any inquiries or the making of any proposals that constitute, or could reasonably be expected to lead to, a proposal or offer with respect to (i) for a merger, reorganizationconsolidation, share exchangebusiness combination, consolidation sale of substantial assets, sale of shares of capital stock (including without limitation by way of a tender or exchange offer) or similar transaction involving itPlayers or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as an "ACQUISITION PROPOSAL"), (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 Qorus 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 Qorus 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 negotiations or discussions with any negotiations person (or group of persons) other than Buyer or its respective affiliates (a "THIRD PARTY") concerning, or provide any confidential non-public information to any person or data entity relating to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort (iii) agree to or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to recommend any Acquisition Proposal. Each ; PROVIDED, however, that until approval of the Affiliated Companies and Qorus agree that they will take Merger at the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contraryPlayers Special Meeting (as defined below), nothing contained in this Agreement shall prevent the board Players or its Board of directors of QorusDirectors, from furnishing non-public information to, or their respective representatives fromentering into discussions or negotiations with, prior any person or entity in connection with an unsolicited bona fide written Acquisition Proposal by such person or entity or modifying or withdrawing its recommendation with respect to the Closing transactions contemplated hereby or recommending an unsolicited bona fide written Acquisition Proposal to the stockholders of Players, if the Board of Directors of Players reasonably believes in good faith that (Ai) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an such Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources receipt of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposedadvice from DLJ, is materially more favorable to reasonably capable of being completed on substantially the stockholders of Qorus terms proposed and is superior from a financial point of view to the holders of Players Common Stock than the transactions contemplated by this Agreement and (any ii) after receipt of advice to such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and effect from outside legal counsel (who may be Players' regularly engaged outside legal counsel), determines in good faith that such Superior Proposal action is reasonably capable required for the Board of being consummated, taking into account legal, financial, regulatory and other aspects Directors of the proposal and the person making the proposalPlayers to comply with its duties to holders of Players Common Stock imposed by applicable law (a "SUPERIOR PROPOSAL").
Appears in 1 contract
Samples: Agreement and Plan of Merger (Players International Inc /Nv/)
No Solicitation. Other than with respect From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, TARGET and the TransactionSubsidiaries will not, each of the Affiliated Companies and Qorus agrees that neither it nor will they authorize or permit any of its their respective officers, directors, managers, affiliates or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney or accountant other advisor or representative retained by it) not any of them to, directly or indirectlyindirectly (i) solicit, initiate, solicit, encourage or otherwise induce the making, submission or announcement of any Acquisition Proposal (as defined below), (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 inquiring or the making of any proposal that constitutes or offer may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to (i) 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 Acquisition Proposal or (iiiv) enter into any tender offer contract relating to any Acquisition Transaction (as defined below); provided, however, this Section 5.10(a) shall not prohibit TARGET or exchange offer for 20% or more its Board of Directors from (A) furnishing information regarding TARGET and the outstanding shares of Qorus 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 Qorus 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 Subsidiaries to, directly entering into a customary confidentiality agreement with or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any entering into discussions with, any person relating or group in response to a Superior Offer submitted by such person or group (and not withdrawn), (B) taking the actions described in Section 5.4(c) as permitted thereby, (C) recommending a Superior Offer to TARGET’s shareholders or (D) terminating this Agreement pursuant to Section 8.1(h) in order to immediately thereafter enter into a definitive agreement with respect to such Superior Offer, if in the case of either (A), (B), (C) or (D), (1) neither TARGET nor any representative of TARGET and the Subsidiaries shall have violated any of the restrictions set forth in this Section 5.10, (2) the Board of Directors of TARGET concludes in good faith, after consultation with its outside legal counsel, that such action is necessary in order for the Board of Directors of TARGET to comply with its fiduciary obligations to TARGET’s shareholders under applicable law, (3)(x) at least two (2) business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such person or group, TARGET gives AHI written notice of the identity of such person or group and of TARGET’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such person or group and (y) TARGET receives from such person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of all written and oral information furnished to such person or group by or on behalf of TARGET, and (4) contemporaneously with furnishing any such information to such person or group, TARGET furnishes such information to AHI (to the extent such information has not been previously furnished by TARGET to AHI). Nothing in this Section 5.10(a) shall prevent TARGET or its Board of Directors from complying with Rules 14e-2 and 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal, or otherwise facilitate any effort or attempt Proposal with respect to make or implement an Acquisition Proposalwhich no violation of this Section 5.10 shall have occurred. Each of TARGET and the Affiliated Companies and Qorus agree that they Subsidiaries will immediately cease any and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each Without limiting the foregoing, it is understood that any violation of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to restrictions set forth in the first sentence hereof preceding two sentences by any officer or director of TARGET or any of the obligations undertaken in Subsidiaries or any investment banker, attorney or other advisor or representative of TARGET or any of the Subsidiaries shall be deemed to be a breach of this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.5.10
Appears in 1 contract
Samples: Agreement and Plan of Merger (Superior Financial Corp /Ar/)
No Solicitation. Other than with respect to (a) Each of Vibrant and the TransactionCompany agrees that, each of during the Affiliated Companies and Qorus agrees that Pre-Closing Period, neither it nor any of its officers, directors, managers, or managing members Subsidiaries shall, and that nor shall it shall direct and use or any of its reasonable best efforts to cause Subsidiaries authorize any of its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not Representatives to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to : (i) a mergersolicit, reorganizationinitiate or knowingly encourage, share exchangeinduce or facilitate the communication, consolidation making, submission or similar transaction involving itannouncement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry, (ii) furnish any salenon-public information regarding such Party to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry, 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore Person with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort Acquisition Inquiry, (iv) approve, endorse or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending recommend any Acquisition Proposal (subject to Section 6.2 and Section 6.3) or causing the applicable party to (v) execute or enter into any letter of intent, agreement in principle, acquisition agreement intent or other similar agreement any Contract contemplating or otherwise relating to any Acquisition ProposalTransaction; provided, ifhowever, that, notwithstanding anything contained in this Section 5.4 and subject to compliance with this Section 5.4, prior to the approval of this Agreement by a Party’s stockholders (i.e., the Required Company Stockholder Vote, in the case of the Company and its Subsidiaries, or the Required Vibrant Shareholder Vote in the case of Vibrant), such Party may furnish non-public information regarding such Party and its Subsidiaries to, and only enter into discussions or negotiations with, any Person in response to the extent that in each a bona fide written Acquisition Proposal by such case referred to in clause (B), (C) or (D) above, Qorus' Person which such Party’s board of directors determines in good faith, after consultation with such Party’s financial advisors and outside legal counsel counsel, constitutes, or is reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither such Party nor any Representative of such Party shall have breached this Section 5.4 in any material respect, (B) the board of directors of such Party concludes in good faith based on the advice of outside legal counsel, that the failure to take such action is necessary would reasonably be expected to act in a manner consistent be inconsistent with the board of directors' ’ fiduciary duties under applicable law Law, (C) at least two (2) Business Days prior to initially furnishing any such nonpublic information to, or entering into discussions with, such Person, such Party gives the other Party written notice of the identity of such Person and determines of such Party’s intention to furnish nonpublic information to, or enter into discussions with, such Person, (D) such Party receives from such Person an executed Acceptable Confidentiality Agreement and (E) at least two (2) Business Days prior to furnishing any such nonpublic information to such Person, such Party furnishes such nonpublic information to the other Party (to the extent such information has not been previously furnished by such Party to the other Party). Without limiting the generality of the foregoing, each Party acknowledges and agrees that, in good faith after consultation with its financial advisors that the person or group making event any Representative of such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition ProposalParty takes any action that, if consummated as proposedtaken by such Party, is materially more favorable would constitute a breach of this Section 5.4 by such Party, the taking of such action by such Representative shall be deemed to the stockholders constitute a breach of Qorus from a financial point this Section 5.4 by such Party for purposes of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.this Agreement. 67
Appears in 1 contract
No Solicitation. Other than with respect (a)Notwithstanding any provision in this Agreement to the Transactioncontrary, each of the Affiliated Companies and Qorus agrees that neither Company shall not, nor shall it nor authorize or permit any of its officersSubsidiaries to, directorsnor shall it authorize or permit any director, managers, officer or managing members shall, and that it shall direct and use employee of the Company or any of its reasonable best efforts to cause its and its agents and other representatives (including Subsidiaries or any investment banker, attorney attorney, accountant or accountant retained by it) not other advisor or representative of the Company or any of its Subsidiaries to, directly or indirectlyindirectly (and it shall instruct and cause each applicable Subsidiary, initiateif any, to instruct each such director, officer, employee, investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries not to), (i) solicit, encourage initiate or otherwise facilitate encourage, or take any other action to facilitate, any Takeover Proposal or any inquiries or the making of any proposal that could reasonably be expected to lead to a Takeover Proposal or offer with respect to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving it, (ii) enter into, continue or otherwise participate in any salediscussions or negotiations regarding, lease, exchange, mortgage, pledge, transfer or purchase of all furnish to any person (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 (iiiany representative thereof) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 with respect to, or have otherwise cooperate in any discussions withway with any person (or any representative thereof) with respect to, any person relating to an Acquisition Takeover Proposal; provided, or otherwise facilitate however, that at any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, time prior to obtaining the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition ProposalShareholder Approval, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide written unsolicited Acquisition 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; (C) engaging in , and which Takeover Proposal did not result from a breach of this Section 4.02 or any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors other provision of this Agreement, approving 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, (A) 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 than those contained in the Amended and Restated Agreement for Exchange of Confidential Information, dated as of June 29, 2012 between Parent and KTI (as it may be amended from time to time, the “Confidentiality Agreement”); provided that all such information had been provided, or recommending any Acquisition Proposal is concurrently provided, to Parent, and (B) participate in discussions or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, ifnegotiations with, and only to the extent that in each such case referred to in clause (B)with, (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal. Without limiting the proposalgenerality of the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any director, officer or employee of the Company or any of its Subsidiaries or any investment banker, attorney, accountant or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.02(a) by the Company.
Appears in 1 contract
No Solicitation. Other than with respect to (a) From and after the Transactiondate hereof, each Xxxx Atlantic shall not, nor shall it permit any of the Affiliated Companies and Qorus agrees that neither its Subsidiaries to, nor shall it nor authorize or permit any of its officers, directors, managers, directors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney financial advisor, attorney, accountants or accountant other representatives retained by it) not it or any of its Subsidiaries to, directly or indirectlyindirectly through another person, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (i) a mergersolicit, reorganizationinitiate or encourage (including by way of furnishing information), share exchangeor knowingly take any other action designed to facilitate, consolidation any Alternative Transaction (as hereinafter defined) or similar transaction involving it, (ii) participate in any salediscussions regarding any Alternative Transaction; provided, leasehowever, exchangethat if, mortgage, pledge, transfer or purchase of all or substantially all at any time prior to approval of the assets or equity securities Stock Issuance and the Certificate Amendment by the holders of itXxxx Atlantic Common Stock, taken as a whole, in a single transaction or series the Board of related transactions or (iii) any tender offer or exchange offer for 20% or more Directors of the outstanding shares of Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors Xxxx Atlantic determines in good faith, after consultation with receipt of advice from outside legal counsel counsel, that the failure to provide such action is necessary to act information or participate in such negotiations or discussions would result in a manner consistent with reasonable possibility that the directors' Board of Directors of Xxxx Atlantic would breach their fiduciary duties to stockholders under applicable law and determines law, Xxxx Atlantic may, in good faith after consultation with its financial advisors response to any such proposal that the person or group making such Acquisition has been determined by it to be a Xxxx Atlantic Superior Proposal has adequate sources of financing to consummate such Acquisition Proposal (as defined in Section 7.2(b)), that was not solicited by it and that did not otherwise result from a breach of this Section 6.3(a), and subject to Xxxx Atlantic giving GTE at least two business days written notice of its intention to do so, (x) furnish information with respect to Xxxx Atlantic and its Subsidiaries to any person pursuant to a customary confidentiality agreement containing terms no less restrictive than the terms of the Nondisclosure Agreement dated July 19, 1998 entered into between Xxxx Atlantic and GTE (the "Nondisclosure Agreement"), provided that a copy of all such Acquisition Proposalinformation is delivered simultaneously to GTE, and (y) participate in negotiations regarding such proposal. Xxxx Atlantic shall promptly notify GTE orally and in writing of any request for information or of any proposal in connection with an Alternative Transaction, the material terms and conditions of such request or proposal (including a copy thereof, if consummated as proposedin writing, is materially more favorable to the stockholders of Qorus from a financial point of view (and all other documentation and any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"related correspondence) and determines in good faith that such Superior Proposal is reasonably capable the identity of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making such request or proposal. Xxxx Atlantic will keep GTE reasonably informed of the proposalstatus and details (including amendments or proposed amendments) of such request or proposal on a current basis. Xxxx Atlantic shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any persons conducted heretofore by Xxxx Atlantic or its representatives with respect to the foregoing. Xxxx Atlantic (i) agrees not to release any Third Party (as defined below) from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreements to which it is a party related to, or which could affect, an Alternative Transaction and agrees that GTE shall be entitled to enforce Xxxx Atlantic's rights and remedies under and in connection with such agreements and (ii) acknowledges that the provisions of clause (i) are an important and integral part of this Agreement. Nothing contained in this Section 6.3(a) or Section 7.2 shall prohibit Xxxx Atlantic (i) from taking and disclosing to its stockholders a position contemplated by Rule 14e-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) from making any disclosure to its stockholders if, in the good faith judgment of the Board of Directors of Xxxx Atlantic, after receipt of advice from outside counsel, failure to disclose would result in a reasonable possibility that the Board of Directors of Xxxx Atlantic would breach its fiduciary duties to Xxxx Atlantic's stockholders under applicable law.
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus agrees that neither it (a) Neither Dreyer's nor any of its officers, directors, managers, or managing members Subsidiaries nor any of the officers and directors of any of them shall, and that it Dreyer's shall direct and use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and other representatives (representatives, including any investment banker, attorney or accountant retained by itit or any of its Subsidiaries (Dreyer's, its Subsidiaries and their respective officers, directors, employees, agents and representatives being the "Dreyer's Representatives") not to, directly or indirectlyindirectly through another Person, initiate, (i) solicit, initiate or encourage or otherwise facilitate any inquiries (including by way of furnishing any non-public information or otherwise) or the making of any inquiry, proposal or offer from any Person which constitutes a Business Combination Proposal with respect to Dreyer's (ior would reasonably be expected to lead to such a Business Combination Proposal) a merger, reorganization, share exchange, consolidation or similar transaction involving it, (ii) any sale, lease, exchange, mortgage, pledge, transfer participate 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore regarding a Business Combination Proposal with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps Dreyer's, except to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement notify such person as to the contraryexistence of these provisions, provided, however, that nothing contained in this Agreement shall prevent the board Dreyer's or its Board of directors of Qorus, or their respective representatives from, prior to the Closing Directors from (A) furnishing non-public information to, or entering into discussions with, any person or entity in connection with an unsolicited bona fide written Business Combination Proposal by such Person if and only to the extent that (1) Dreyer's is not then in breach of its obligations under this Section 5.9(a), (2) the Board of Directors of Dreyer's believes in good faith (after consultation with its financial advisors and outside legal counsel) that such Business Combination Proposal constitutes or would reasonably be expected to result in a Superior Proposal and (3) prior to furnishing such nonpublic information to, or entering into discussions or negotiations with, such Person, such Board of Directors receives from such Person an executed confidentiality agreement with terms no less restrictive than those contained in the Confidentiality Agreement or (B) complying with Rule 14e-2 Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition a Business Combination Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Contribution (Nestle Holdings Inc)
No Solicitation. Other than with respect to From the Transactiondate hereof and through the Closing --------------- (the "Nonsolicitation Period"), each of the Affiliated Companies Company and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members APL shall, and that it shall direct cause their respective representatives, affiliates, agents, financial advisors and use its reasonable best efforts employees (collectively, "Representatives") to, refrain from soliciting, discussing, providing information to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not tonegotiating, directly or indirectly, initiatewith any third party (other than Purchaser and its Representatives) any inquiries, solicit, encourage proposals or otherwise facilitate any inquiries or the making of any proposal or offer offers with respect to (i) 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 the sale 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 Qorus Common Stock or any portion of the Company's Shares assets or securities (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") (other than sales and other dispositions of assets in the ordinary course of business which are not material to the Business). Each ; provided, -------- however, that, subject to the provisions of Section 7.2, at any time prior to ------- the Affiliated Companies earlier of (i) April 30, 1999 and Qorus further agree (ii) the time the shareholders of NOL shall have voted to approve this Agreement, if NOL or APL shall receive from any third party an unsolicited Acquisition Proposal and determines in good faith upon the advice of its financial advisors that they and their officerssuch unsolicited Acquisition Proposal is superior in its terms to the terms contemplated hereunder, directors, managers, NOL or managing members shallAPL may, and that they shall direct may authorize and use their reasonable best efforts to cause their agents and representatives not permit its Representatives to, directly or indirectlyprovide third parties with nonpublic information, 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 Qorus agree that they will immediately cease and cause to be terminated by any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt third party to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any recommend or endorse such more favorable Acquisition Proposal being referred with or by any third party, and participate in discussions and negotiations with any third party relating to as a "Superior such Acquisition Proposal") . NOL or APL shall promptly advise the Purchaser following the receipt by NOL or APL of any Acquisition Proposal and determines in good faith that such Superior Proposal is reasonably capable the substance thereof (including the identity of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making such Acquisition Proposal), and advise the proposalPurchaser of any developments with respect to such Acquisition Proposal promptly upon the occurrence thereof.
Appears in 1 contract
No Solicitation. Other than with respect to From and after the Transactiondate hereof until the termination of this Agreement, each of the Affiliated Companies and Qorus agrees that neither it PennFed, nor any PennFed Subsidiary, nor any of its their respective officers, directors, managersemployees, representatives, agents or managing members shallaffiliates (including, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including without limitation, any investment banker, attorney or accountant retained by it) not toPennFed or any of its Subsidiaries), will, directly or indirectly, initiate, solicit, solicit or encourage (including by way of furnishing non-public information or otherwise facilitate assistance) any inquiries or the making or implementation of any proposal that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with respect any Person in furtherance of such inquiries, or authorize or permit any of its officers, directors, or employees or any of its subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by any of its subsidiaries to take any such action, and PennFed shall notify NYB orally (iwithin one business day) and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which it or any of its Subsidiaries or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or other representative may receive relating to any of such matters, provided, however, that nothing contained in this Section 6.10 shall prohibit the Board of Directors of PennFed from furnishing information to, or entering into discussions or negotiations, with any Person that makes an unsolicited written proposal to acquire PennFed pursuant to a merger, reorganizationconsolidation, share exchange, consolidation or similar transaction involving itbusiness combination, (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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposaltransaction, if, and only to the extent that in each such case referred to in clause (B)that, (CA) or (D) above, Qorus' board the Board of directors determines in good faithDirectors of PennFed determines, after consultation with outside legal counsel and after considering the advice of its independent financial advisor, that such action proposal is necessary superior to act in the Merger from a manner consistent with financial point-of-view to PennFed’s stockholders, (B) the directors' fiduciary duties under applicable law and determines in good faith Board of Directors of PennFed, after consultation with its financial advisors that and after considering the person or group making such Acquisition Proposal has adequate sources advice of financing to consummate such Acquisition Proposal and that such Acquisition Proposalindependent legal counsel, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that the failure to furnish information to or enter into discussions with such Person would be inconsistent with the Board of Directors of PennFed’s fiduciary duties under applicable law; (C) such Acquisition Proposal was not solicited by PennFed and did not otherwise result from a breach of this Section 6.10 by PennFed (such proposal that satisfies (A), (B) and (C) being referred to herein as a “Superior Proposal is reasonably capable Proposal”); (D) PennFed promptly notifies NYB of being consummatedsuch inquiries, taking into account legalproposals or offers received by, financialany such information requested from, regulatory and other aspects or any such discussions or negotiations sought to be initiated or continued with PennFed or any of its representatives indicating, in connection with such notice, the proposal name of such Person and the person making material terms and conditions of any inquiries, proposals or offers, and receives from such Person an executed confidentiality agreement; and (E) the proposal.PennFed Stockholders Meeting has not occurred. For purposes of this Agreement, “
Appears in 1 contract
Samples: Agreement and Plan of Merger (New York Community Bancorp Inc)
No Solicitation. Other than with respect to Each of Nautilus and the TransactionCompany agrees that, each of during the Affiliated Companies and Qorus agrees that Pre-Closing Period, neither it nor any of its officers, directors, managers, or managing members Subsidiaries shall, and that nor shall it shall direct and use or any of its reasonable best efforts to cause Subsidiaries authorize any of its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not Representatives to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to : (i) a mergersolicit, reorganizationinitiate or knowingly encourage, share exchangeinduce or facilitate the communication, consolidation making, submission or similar transaction involving it, announcement of any Acquisition Proposal or Acquisition Inquiry or take any action that could reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry; (ii) furnish any sale, lease, exchange, mortgage, pledge, transfer non-public information regarding such Party to any Person in connection with or purchase of all in response to an Acquisition Proposal 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 Acquisition Inquiry; (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore Person with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals Proposal or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange ActInquiry; (Biv) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations approve, endorse or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending recommend any Acquisition Proposal (subject to Section 5.2 and Section 5.3); (v) execute or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement intent or other similar agreement any Contract contemplating or otherwise relating to any Acquisition ProposalTransaction; or (vi) publicly propose to do any of the foregoing; provided, ifhowever, that, notwithstanding anything contained in this Section 4.4 and subject to compliance with this Section 4.4, prior to the approval of this Agreement by a Party’s stockholders (i.e., the Required Company Stockholder Vote, in the case of the Company and its Subsidiaries, or the Required Nautilus Stockholder Vote in the case of Nautilus), such Party may furnish non-public information regarding such Party and its Subsidiaries to, and only enter into discussions or negotiations with, any Person in response to the extent that in each a bona fide written Acquisition Proposal by such case referred to in clause (B), (C) or (D) above, Qorus' Person which such Party’s board of directors determines in good faith, after consultation with such Party’s outside financial advisors and outside legal counsel counsel, constitutes, or is reasonably likely to result in, a Superior Offer (and is not withdrawn) if: (A) neither such Party nor any Representative of such Party shall have breached this Section 4.4 in any material respect, (B) the board of directors of such Party concludes in good faith based on the advice of outside legal counsel, that the failure to take such action is necessary reasonably likely to be inconsistent with the fiduciary duties of the board of directors of such Party under applicable Law; (C) at least two Business Days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, such Party gives the other Party written notice of the identity of such Person and of such Party’s intention to furnish nonpublic information to, or enter into discussions with, such Person; (D) such Party receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions) at least as favorable to such Party as those contained in the Confidentiality Agreement; and (E) substantially contemporaneously with furnishing any such nonpublic information to such Person, such Party furnishes such nonpublic information to the other Party (to the extent such information has not been previously furnished by such Party to the other Party). Without limiting the generality of the foregoing, each Party acknowledges and agrees that, in the event any Representative of such Party (whether or not such Representative is purporting to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making on behalf of such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition ProposalParty) takes any action that, if consummated as proposedtaken by such Party, is materially more favorable would constitute a breach of this Section 4.4 by such Party, the taking of such action by such Representative shall be deemed to the stockholders constitute a breach of Qorus from a financial point this Section 4.4 by such Party for purposes of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalthis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Nivalis Therapeutics, Inc.)
No Solicitation. Other than with respect Until the earlier of (a) the Closing, and (b) the termination of this Agreement pursuant to the TransactionSection 11.1, each of the Affiliated Companies Sellers agree that they shall not, and Qorus agrees that neither it nor any of its shall cause their respective officers, directors, managersemployees, or managing members shallAffiliates, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankerattorneys, attorney or accountant retained by it) not toadvisors, directly or indirectlyaccountants, initiatebankers, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus 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: (a) solicit any proposal or offer from any Person (other than Buyer or one of its Affiliates) relating to any transaction or series of related transactions involving: (i) the disposition or acquisition of all or any material portion of the business or assets of the Fastener Subsidiaries; (ii) the sale, engage issuance, grant, disposition or acquisition of (A) any capital stock or other equity security of a Fastener Subsidiary or (B) any option, call, warrant or right (whether or not immediately exercisable) to acquire, or any security, instrument or obligation that is or may become convertible into or exchangeable for, any capital stock or other equity security of a Fastener Subsidiary; (iii) any merger, consolidation, business combination, tender offer, share exchange, reorganization or similar transaction involving a Fastener Subsidiary, other than, in each case, the transactions contemplated by this Agreement; or (iv) any other transaction or financing which if consummated would have an adverse effect on Seller’s ability to perform its obligations under this Agreement (each of (i) through (iv) above, inclusive, an “Alternative Transaction”); (b) participate in any discussions or negotiations concerningor enter into any agreement with, or provide any confidential information or data to, any Person (other than Buyer or have one of its Affiliates) in connection with an Alternative Transaction to be made by such Person; provided that in response to any discussions with, any person relating unsolicited communications from a third party with respect to an Acquisition ProposalAlternative Transaction, or otherwise facilitate Sellers shall be permitted to inform such third party that Sellers are prohibited by this Agreement from participating in any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition ProposalAlternative Transaction; or (Dc) withdrawing accept any proposal or modifying the approval offer from any Person (other than Buyer or recommendation by Qorus' board one of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement its Affiliates) relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalan Alternative Transaction.
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction(a) None of Company, each of the Affiliated Companies and Qorus agrees that neither it nor its Subsidiaries or any of its officersofficer, directorsdirector, managersemployee, agent or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives representative (including any investment banker, attorney financial advisor, attorney, accountant or accountant retained other representative) of Company or any of its Subsidiaries shall directly or indirectly (i) solicit, initiate, encourage, facilitate (including by itway of furnishing information) or take any other action designed to facilitate any inquiries or proposals regarding any merger, share exchange, 28 <PAGE> consolidation, sale of assets, sale of shares of capital stock (including by way of a tender offer) or similar transactions involving Company or any of its Subsidiaries that, if consummated, would constitute an Alternative Transaction (any of the foregoing inquiries or proposals, including the indication of any intention to propose any of the foregoing, being referred to herein as an "Alternative Proposal"), (ii) participate in any discussions or negotiations regarding an Alternative Transaction or (iii) enter into any agreement regarding any Alternative Transaction. Notwithstanding the foregoing, the Board of Directors of Company shall be permitted, prior to the meeting of Company stockholders to be held pursuant to Section 6.3, and subject to compliance with the other terms of this Section 6.9 (including but not limited to the preceding sentence) and to first entering into a confidentiality agreement with the person proposing such Alternative Proposal on terms substantially similar to, and no less favorable to Company than, those contained in the Confidentiality Agreement, to consider and participate in discussions and negotiations and provide information with respect to a bona fide Alternative Proposal received by Company, if and only to the extent that and so long as the Board of Directors of Company reasonably determines in good faith (after consultation with outside legal counsel) that failure to do so would cause it to violate its fiduciary duties to Company stockholders under applicable law. As used in this Agreement, "Alternative Transaction" means any of (i) a transaction pursuant to which any person (or group of persons) (other than Parent or its affiliates), directly or indirectly, initiate, solicit, encourage acquires or otherwise facilitate would acquire more than 15% of the outstanding shares of Company or any inquiries of its Subsidiaries or the making outstanding voting power or of any proposal new series or offer new class of preferred stock that would be entitled to a class or series vote with respect to a merger with Company or any of its Subsidiaries, whether from Company or pursuant to a tender offer or exchange offer or otherwise, (iii) a merger, reorganization, share exchange, consolidation or similar transaction other business combination involving itCompany or any of its Subsidiaries (other than the Merger), (iiiii) any sale, lease, exchange, mortgage, pledge, transfer transaction pursuant to which any person (or purchase group of all persons) (other than Parent or substantially all its affiliates) acquires or would acquire control of assets (including for this purpose the assets or outstanding equity securities of itsubsidiaries of Company and securities of the entity surviving any merger or business combination including any of Company's Subsidiaries) of Company or any of its Subsidiaries representing more than 15% of the fair market value of all the assets, net revenues or net income of Company and its Subsidiaries, taken as a whole, in a single transaction or series of related transactions immediately prior to such transaction, or (iiiiv) any tender offer other consolidation, business combination, recapitalization or exchange offer for 20% similar transaction involving Company or more any of its Subsidiaries other than the outstanding shares transactions contemplated by this Agreement. (b) Company shall notify Parent promptly (but in no event later than 48 hours) after receipt of Qorus 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 Qorus 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 Alternative Proposal, or otherwise facilitate any effort material modification of or attempt material amendment to any Alternative Proposal, or any request for nonpublic information relating to Company or any of its Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries, other than any such request that does not relate to and would not reasonably be expected to lead to, an Alternative Proposal. Such notice to Parent shall be made orally and in writing, and shall indicate the identity of the person making the Alternative Proposal or intending to make or implement considering making an Acquisition Alternative Proposal or requesting non-public information or access to the books and records of Company or any of its Subsidiaries, and a copy (if in writing) and summary of the material terms of any such Alternative Proposal or modification or amendment to an Alternative Proposal. Each Company shall keep Parent fully informed, on a current 29 <PAGE> basis, of any material changes in the Affiliated Companies status and Qorus agree that they will any material changes or modifications in the terms of any such Alternative Proposal, indication or request. Company shall also provide Parent 24 hours written notice before it enters into any discussions or negotiations concerning any Alternative Proposal in accordance with Section 6.9(a). (c) Company and its Subsidiaries shall immediately cease and cause to be terminated any existing discussions or negotiations with any parties persons (other than Parent) conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies foregoing, and Qorus agree that they will take shall use reasonable best efforts to cause all persons other than Parent who have been furnished confidential information regarding Company in connection with the necessary steps to promptly inform solicitation of or discussions regarding an Alternative Proposal within the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, 12 months prior to the Closing date hereof promptly to return or destroy such information. Company agrees not to, and to cause its Subsidiaries not to, release any third party from the confidentiality and standstill provisions of any agreement to which Company or its Subsidiaries is or may become a party, and shall immediately take all steps necessary to terminate any approval that may have been heretofore given under any such provisions authorizing any person to make an Alternative Proposal. Neither Company nor the Board of Directors of Company shall approve or take any action to render inapplicable to any Alternative Proposal or Alternative Transaction Section 203 of the DGCL or any similar Takeover Statutes. (Ad) complying with Rule 14e-2 promulgated under Except as expressly permitted by this Section 6.9(d), neither the Exchange Act with regard to an Acquisition ProposalBoard of Directors of Company nor any committee thereof shall (i) withdraw, if applicablemodify or qualify, or otherwise complying propose publicly to withdraw, modify or qualify, the recommendation by the Board of Directors of Company of this Agreement and/or the Merger to Company's stockholders, (ii) take any public action or make any public statement in connection with the Exchange Act; (B) providing information in response meeting of Company stockholders to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions be held pursuant to Section 6.3 inconsistent with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; such recommendation or (Diii) withdrawing approve or modifying recommend, or publicly propose to approve or recommend, or fail to recommend against, any Alternative Proposal (any of the approval actions described in clauses (i), (ii) or recommendation by Qorus' board (iii), a "Change of directors Recommendation"). Notwithstanding the foregoing, the Board of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter Directors of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition ProposalCompany may make a Change of Recommendation, if, and only to if, each of the extent following conditions is satisfied: (i) it receives an unsolicited Alternative Proposal that constitutes a Superior Proposal and such Superior Proposal has not been withdrawn; (ii) Company has not breached any of the provisions set forth in each such case referred to in clause Section 6.3 or this Section 6.9; (B), (Ciii) or (D) above, Qorus' board of directors it reasonably determines in good faith, faith (after consultation with outside legal counsel counsel), that in light of a Superior Proposal the failure to effect such action is necessary Change of Recommendation would cause it to act in a manner consistent with the directors' violate its fiduciary duties to Company stockholders under applicable law law; (iv) Parent has received written notice from Company (a "Change of Recommendation Notice") at least five business days prior to such Change of Recommendation, which notice shall (1) state expressly that Company has received a Alternative Proposal which the Board of Directors of Company has determined is a Superior Proposal and determines that Company intends to effect a Change of Recommendation and 30 <PAGE> the manner in which it intends or may intend to do so and (2) include the identity of the person making such Alternative Proposal and a copy (if in writing) and summary of material terms of such Alternative Proposal; provided that any material amendment to the terms of such Alternative Proposal shall require a Change of Recommendation Notice at least two business days prior to such Change of Recommendation; and (v) during any such notice period, Company and its advisors have negotiated in good faith with Parent to make adjustments in the terms and conditions of this Agreement such that such Alternative Proposal would no longer constitute a Superior Proposal. As used in this Agreement, "Superior Proposal" means any proposal made by a third party (A) to acquire, directly or indirectly, for consideration consisting of cash and/or securities, 100% of the outstanding shares of Company Common Stock or 100% of the assets, net revenues or net income of Company and its Subsidiaries, taken as a whole and (B) which is otherwise on terms which the Board of Directors of Company determines in its reasonable good faith judgment (after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal advisor and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummatedoutside legal counsel), taking into account account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal., that the proposal, (i) if consummated would result in a transaction that is more favorable, from a financial point of view, to Company's stockholders than the Merger and the other transactions contemplated hereby and (ii) is reasonably capable of being completed, including to the extent required, financing which is then committed or which, in the good faith judgment of the Board of Directors of Company, is reasonably capable of being obtained by such third party. (e) Company shall ensure that the officers, directors and all employees, agents and representatives (including any investment bankers, financial advisors, attorneys, accountants or other representatives) of Company or its Subsidiaries are aware of the restrictions described in this Section 6.9 as reasonably necessary to avoid violations thereof. It is understood that any violation of the restrictions set forth in this Section 6.9 by any officer, director, employee, agent or representative (including any investment banker, financial advisor, attorney, accountant or other representative) of Company or its Subsidiaries shall be deemed to be a breach of this Section 6.9
Appears in 1 contract
Samples: Agreement and Plan of Merger Agreement and Plan of Merger
No Solicitation. Other than In the Merger Agreement, the Company has agreed not to (for so long as the Merger Agreement has not been terminated in accordance with respect its terms), and to the Transaction, each of the Affiliated Companies cause its subsidiaries and Qorus agrees that neither it nor any of its and their respective officers, directors, managersemployees, consultants, representatives, agents or managing members shallaffiliates (collectively, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankerthe "Company Representatives"), attorney or accountant retained by it) not to, directly or indirectly, initiate(a) encourage, solicit, encourage initiate or otherwise facilitate the making of, 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 proposal or offer, or any indication of interest in making an offer with respect or proposal, by any person or group relating to (i) a merger, reorganization, share exchange, consolidation any acquisition or similar transaction involving itpurchase which is structured to permit such person or group to acquire beneficial ownership of at least 10% of the assets of the Company or any of its subsidiaries or of over 10% of any class of equity securities of the Company or any of its subsidiaries, (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 20that would result in any person, other than Parent, Purchaser, their affiliates or any group of which any of them is a member, beneficially owning 10% or more of any class of equity securities of the outstanding shares Company or any of Qorus Common Stock its subsidiaries, or (iii) any merger, consolidation, business combination, sale of substantially all the Company's Shares assets, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each ) (including, without limitation, by taking any action that would make Section 203 of the Affiliated Companies and Qorus 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 DGCL inapplicable to an Acquisition Proposal), or otherwise facilitate (b) participate in any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing way in discussions or negotiations with, or furnish or disclose any information or afford any access to the properties, books or records of the Company or any of its subsidiaries to, any person (other than Parent or Purchaser or any affiliate or associate of Parent or Purchaser) in connection with any parties conducted heretofore Acquisition Proposal, (c) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser the approval and recommendation of the Offer, the Merger or the Merger Agreement, (d) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal (unless contemporaneously with respect such approval or recommendation the Company terminates the Merger Agreement in the manner described in paragraph (e) under "Termination" below), (e) release any third party from any confidentiality or standstill agreement to which the Company is a party or fail to enforce to the fullest extent possible, or grant any waiver, request or consent to any Acquisition Proposal under, any such agreement, or (f) enter into any agreement, letter of intent or similar document contemplating or otherwise relating to any Acquisition Proposal. Each of The Merger Agreement provides, that notwithstanding the Affiliated Companies and Qorus agree that they foregoing provisions, neither the Company nor the Company Representatives will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives be prohibited from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.:
Appears in 1 contract
No Solicitation. Other than with respect (a) From and after the date hereof until the earlier of the Closing Date and the termination of this Agreement pursuant to the TransactionArticle 7, Seller and its Affiliates shall not, and shall cause each of the Affiliated Companies and Qorus agrees that neither it nor any of its their respective officers, directors, managersemployees, or managing members shallagents, counsel, accountants, investment bankers, financial advisors and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankercollectively, attorney or accountant retained by itthe "Seller Representatives") not to, directly or indirectly, initiate, (i) solicit, initiate or encourage (including by way of furnishing information or otherwise facilitate assistance, except for any inquiries information which Seller's independent legal counsel advises Seller it is obliged to furnish pursuant to the City Code on Takeovers and Mergers), or take any other action to facilitate, any inquiry in connection with or the making of any proposal from any Person that constitutes, or offer with respect may reasonably be expected to lead to, an Acquisition Proposal (i) a merger, reorganization, share exchange, consolidation or similar transaction involving itas defined below), (ii) enter into, explore, maintain, participate in or continue any sale, lease, exchange, mortgage, pledge, transfer discussion or purchase negotiation with any Person (other than Purchaser or any 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 (iiiits representatives) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 regarding an Acquisition Proposal, or furnish to any Person (other than Purchaser or any of its representatives) any information (except for any information which Seller's independent legal counsel advises Seller it is obliged to furnish pursuant to the City Code on Takeovers and Mergers) 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 Purchaser or any of its representatives) to make or implement effect an Acquisition Proposal, (iii) enter into any agreement, arrangement or understanding with respect to, or otherwise endorse, any Acquisition Proposal or (iv) authorize or permit any Seller Representative to take any such action. Each of Notwithstanding the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore foregoing, with respect to any Acquisition Proposal which only involves the Business (a "Business Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary"), nothing contained in this Section 4.3 shall prohibit Seller's board of directors, prior to approval of this Agreement shall prevent by the stockholders of Seller at the Stockholders Meeting, from furnishing information to, or engaging in discussions or negotiations with, any Person that makes an unsolicited bona fide written Business Acquisition Proposal (which did not result from a breach of this Section 4.3) if (A) Seller's board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with independent outside legal counsel, that such action is necessary for Seller's board of directors to comply with its financial advisors that fiduciary duties to Seller's stockholders under applicable law or in order to comply with their obligations under the person City Code on Takeovers and Mergers (it being agreed the directors' obligations under the City Code on Takeovers and Mergers shall be limited to the obligation to furnish information, and not to engage in discussions or group making negotiations with, any such Person), (B) the Business Acquisition Proposal has adequate sources of financing constitutes or would reasonably be expected to consummate lead to a Superior Proposal (as defined below) and (C) prior to furnishing such information to, or engaging in discussions or negotiations with, such Person, Seller receives from such Person an executed confidentiality agreement (which agreement shall be provided to Purchaser for information purposes) with terms materially no less favorable to Seller than those contained in the confidentiality agreement between Seller and Golden Gate Private Equity, Inc. Notwithstanding the foregoing, with respect to any Acquisition Proposal and that such Acquisition Proposalwhich involves MERANT plc (including the Business), if consummated as proposednothing contained in this Section 4.3 shall prohibit Seller's board of directors, is materially more favorable prior to approval of this Agreement by the stockholders of Qorus Seller at the Stockholders Meeting, from a financial point of view (engaging in any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal activities described in clause (i) or clause (ii) of the first sentence of this Section 4.3(a) if prior to furnishing such information to, or engaging in discussions or negotiations with, such Person, Seller receives from such Person an executed confidentiality agreement with terms materially no less favorable to Seller than those contained in the confidentiality agreement between Seller and the person making the proposal.Golden Gate Private Equity, Inc.
Appears in 1 contract
Samples: Purchase Agreement (Merant PLC)
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members Each Stockholder shall, and that it shall direct cause its Affiliates to, and shall use reasonable best efforts to cause its and their respective Representatives to, immediately cease and terminate any and all solicitations, discussions or negotiations existing as of the date hereof between such Stockholder, Affiliates or Representatives, on the one hand, and Rockets and its Affiliates or Representatives or any Third Party (or its Representatives), on the other hand, in connection with or in response to an actual or potential Rockets Acquisition Proposal or any inquiry, proposal or indication of interest with respect thereto. From and after the date hereof, for the duration of the Voting Period, each Stockholder shall not, and each Stockholder shall cause its Affiliates not to, and shall use its reasonable best efforts to cause its and their Representatives (it being understood that, for purposes hereof, a Representative of Rockets or its agents and other representatives (including any investment bankerSubsidiaries shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, attorney her or accountant retained by itits capacity as a Rockets Stockholder) not to (and shall not authorize or give permission to its and their respective Representatives to), directly or indirectlyindirectly (i) solicit, initiate, solicit, seek or knowingly encourage or otherwise facilitate the making, submission or announcement of, or make, submit or announce, any inquiries inquiry, discussion, request, offer or the making of any proposal that constitutes, or offer with respect would reasonably be expected to (i) lead to, a merger, reorganization, share exchange, consolidation or similar transaction involving itRockets Acquisition Proposal, (ii) (A) furnish any salenon-public information regarding Rockets or any of its Subsidiaries to, leaseor afford access to the properties, exchangebooks and records of Rockets or any of its Subsidiaries to, mortgageany Third Party, pledge, transfer or purchase (B) request or seek from Rockets or any of all or substantially all of the assets or equity securities of it, taken as a wholeits Subsidiaries any such access, in each case, in connection with or in response to, or that would be reasonably likely to lead to, a single transaction Rockets Acquisition Proposal or series any inquiry, proposal or indication of related transactions or interest with respect thereto, (iii) any tender offer engage or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus 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 participate 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with Rockets or any parties conducted heretofore Third Party with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorusto, or their respective representatives fromthat would be reasonably likely to lead to, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Rockets Acquisition Proposal or otherwise facilitating any effort inquiry, proposal or attempt to implement an Acquisition Proposal; indication of interest with respect thereto, or (Div) withdrawing adopt or modifying the approval approve, or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or any other similar agreement or instrument providing for or relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Rockets Acquisition Proposal has adequate sources or any inquiry, proposal or indication of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalinterest with respect thereto.
Appears in 1 contract
No Solicitation. Other than with respect (a) From the date of this Agreement until the Effective Time or the termination of this Agreement pursuant to the Transactionterms of this Agreement, each of the Affiliated Companies Company shall not and Qorus agrees that neither it nor shall not permit any of its officersSubsidiaries, Affiliates, directors, managersofficers, employees, agents or managing members shallrepresentatives, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including including, without limitation, any investment banker, attorney or accountant retained by it) not toof the Company or any of its Subsidiaries (collectively, "Representatives"), directly or indirectly, --------------- to: (i) initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information), any inquiries or the making of any proposal or offer with respect that constitutes, or may reasonably be expected to lead to an Acquisition Proposal (i) a merger, reorganization, share exchange, consolidation or similar transaction involving it, as defined below); (ii) any sale, lease, exchange, mortgage, pledge, transfer enter into or purchase of all maintain 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing continue discussions or negotiations negotiate with any parties conducted heretofore with respect Person in furtherance of such inquiries or to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement obtain an Acquisition Proposal; or (Diii) withdrawing agree to, approve, recommend or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to endorse any Acquisition Proposal, ifor authorize or permit any of its or their Subsidiaries or Representatives to take any such action, and the Company shall promptly notify Acquiror of any such inquiries and proposals received by the Company or any of its Subsidiaries or Representatives, relating to any of such matters; provided, -------- however, that the foregoing shall not prohibit the Board of Directors of the ------- Company from (A) furnishing information to, or engaging in discussions or negotiations with, any Person in response to an unsolicited bona fide written Acquisition Proposal; or (B) recommending such an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, if and only to the extent that: (w) the Board of Directors of the Company concludes in good faith (after consultation with its financial advisors) that in each such case referred to in clause Acquisition Proposal would constitute a Superior Proposal (Bas hereinafter defined), ; (Cx) or (D) above, Qorus' board the Board of directors Directors of the Company determines in good faith, faith (after consultation with outside legal counsel counsel) that the failure to take such action is necessary to act would result in a manner consistent with breach by the directors' Board of Directors of the Company of its fiduciary duties to the Company's stockholders under applicable law law; (y) prior to furnishing such information to, or entering into discussions or negotiations with, such Person the Company provides prompt written notice to Acquiror to the effect that it is furnishing information to, or entering into discussions or negotiations with, such Person (which notice shall identify the nature and determines material terms of the proposal); and (z) prior to providing any information or data to any Person in good faith after consultation connection with its financial advisors that the person or group making such an Acquisition Proposal has adequate sources by any such Person, the Board of financing Directors of the Company receives from such Person an executed confidentiality agreement with provisions no less favorable to consummate such the Company than the Confidentiality Agreement. The Company agrees that it will immediately cease any existing activities, discussions, or negotiations with any parties regarding any Acquisition Proposal. The Company shall as promptly as practicable provide Acquiror with a copy of any written Acquisition Proposal received and a written statement with respect to any nonwritten Acquisition Proposal received, which statement shall include the identity of the Person making the Acquisition Proposal and that such the material terms thereof. The Company shall inform Acquiror as promptly as practicable of any change in the price, structure, form of consideration or material terms and conditions regarding the Acquisition Proposal, if consummated as proposed, is materially more favorable . The Company agrees to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") keep Acquiror fully and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects timely informed of the proposal and the person making the proposalstatus of any discussions, negotiations, furnishing of non-public information, or other activities relating to an Acquisition Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Answerthink Consulting Group Inc)
No Solicitation. Other than with respect to From the Transaction, each date of this Agreement until the earlier of the Affiliated Companies and Qorus agrees that neither it Closing Date or the date of the termination of this Agreement pursuant to Article X, the Sellers shall not, nor shall either of them authorize or permit any of its officersofficer, directorsdirector, managersemployee, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by itother adviser or representative of the Sellers to: (a) not to, directly or indirectly, initiate, solicit, initiate or encourage the submission of, any Acquisition Proposal (as hereinafter defined), (b) enter into any agreement with respect to any Acquisition Proposal, or otherwise (c) participate in any discussions or negotiations regarding, or furnish to any Person any information for the purpose of facilitating the making of, 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. The Sellers shall promptly advise Purchaser of any Acquisition Proposal and any inquiries with respect to any Acquisition Proposal. For purposes of this Section 7.5, “Acquisition Proposal” means any proposal for a merger or other business combination involving Sellers, the Business or the Purchased Assets or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in Sellers, any voting securities of Sellers, a substantial portion of the assets of Sellers, the Business or the Purchased Assets (but not including proposals for sales of inventory in the Ordinary Course of Business); provided, that nothing in this Section 7.5 will prohibit Sellers or their Affiliates from taking any of the actions described in this Section 7.5 with respect to (i) a merger, reorganization, share exchange, consolidation any actual or similar proposed change of control transaction involving it, (ii) ChromaDex Corporation where any sale, lease, exchange, mortgage, pledge, transfer or purchase of Person would acquire 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% ChromaDex Corporation or more than fifty percent (50%) of the outstanding shares common stock of Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")ChromaDex Corporation. Each of the Affiliated Companies and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal7.6.
Appears in 1 contract
Samples: Asset Purchase Agreement
No Solicitation. Other than with respect (a) From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to the TransactionArticle VIII hereof, each of the Affiliated Companies Company ------------ and Qorus agrees that neither it its subsidiaries will not, nor will they authorize or permit any of its their respective officers, directors, managers, controlled affiliates or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney or accountant other advisor or representative retained by it) not any of them to, directly or indirectly, (i) solicit, initiate, solicitinduce or knowingly encourage the making, submission or announcement of any Acquisition Proposal (as defined below), (ii) enter or participate in any discussions or negotiations with a third party regarding, or furnish to any person any information with respect to Company or any of its subsidiaries, or take any other action to cooperate in any way with, or knowingly assist, participate in, facilitate or encourage or otherwise facilitate any inquiries or the making of any proposal that constitutes or offer with respect may reasonably be expected to (i) a mergerlead to, reorganizationany Acquisition Proposal, 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) approve, endorse or recommend any tender offer Acquisition Proposal or exchange offer for 20% (iv) enter into any letter of intent or more of the outstanding shares of Qorus Common Stock similar document or the Company's Shares (any such proposal contract, agreement or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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, commitment contemplating or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect relating to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree Transaction (as defined below); provided, however, that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement Section 6.4 shall prevent prohibit the board of directors of Qorus, or their respective representatives from, prior to the Closing Company from (Ai) complying with Rule 14e-2 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (Bii) providing information in response to a request therefore by a person who has made a an unsolicited, bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited written Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' that Company's board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause reasonably concludes (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act the Company's financial advisor) constitutes a Superior Proposal (as defined below), engaging in a manner consistent discussions or participating in negotiations with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable furnishing information to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.party making
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Genesis Microchip Inc)
No Solicitation. Other than with respect to the Transaction, each (a) None of the Affiliated Companies and Qorus agrees that neither it nor Company, its Subsidiaries or any of its officersofficer, directorsdirector, managersemployee, agent or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives representative (including any investment banker, attorney financial advisor, attorney, accountant or accountant other retained by itrepresentative) not to, of the Company or any of its Subsidiaries shall directly or indirectlyindirectly (i) solicit, initiate, solicitencourage, encourage facilitate (including by way of furnishing information) or otherwise take any other action designed to facilitate any inquiries or the making of proposals regarding any proposal or offer with respect to (i) a merger, reorganization, share exchange, consolidation consolidation, sale of assets, assumption of liabilities, sale of shares of capital stock (including by way of a tender offer) or similar transaction transactions involving itthe Company 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 “Alternative Proposal”), (ii) participate in any salediscussions or negotiations regarding an Alternative Transaction, 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) enter into any tender offer or exchange offer for 20% or more agreement regarding any Alternative Transaction. Notwithstanding the foregoing, the Company Board and its representatives may, before the approval of the outstanding shares of Qorus Common Stock or this Agreement by the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus further agree that they and their officers, directors, managers, or managing members shall’s stockholders, and that they shall direct and use their reasonable best efforts subject 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 compliance with the other terms of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary6.10, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing provide information in response to a request therefore therefor by a person who has made a an unsolicited bona fide unsolicited Acquisition Proposalwritten Alternative Proposal that did not result from a breach of this Agreement providing for the acquisition of more than 50% of the assets (on a consolidated basis) or more than 50% of the Company Common Stock if the Company receives from the person so requesting such information an executed confidentiality agreement on terms not less restrictive to the other party than those contained in the Confidentiality Agreement (as defined in Section 6.2) (and promptly discloses (and, if applicable, provides copies of) any such information to Buyer to the extent not previously provided to such party); (CB) engaging engage or participate in any discussions or negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement such an Acquisition Alternative Proposal; or (DC) withdrawing approve, recommend, or modifying the approval otherwise declare advisable or recommendation by Qorus' board of directors of this Agreementpropose to approve, approving recommend or recommending any Acquisition Proposal declare advisable (publicly or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition otherwise) such an Alternative Proposal, if, if and only to the extent that, (x) prior to taking any action described in clause (A), (B) or (C) above, the Company Board determines in good faith after consultation with outside legal counsel that failure to take such action, in light of such Alternative Proposal and the terms of this Agreement, would cause the Company Board to violate its fiduciary duties (y) in each such case referred to in clause (A) or (B)) above, the Company Board has determined in good faith, based on the information then available and after consultation with its financial advisor and outside legal counsel, that such Alternative Proposal either constitutes a Superior Proposal (as defined below) or is reasonably likely to result in a Superior Proposal, and (z) in the case referred to in clause (C) or (D) above, Qorus' the board of directors of the Company determines in good faithfaith (after consultation with its financial advisor and outside legal counsel) that such Alternative Proposal is a Superior Proposal. Nothing contained in this Section 6.10(a) shall restrict or prohibit any disclosure by the Company that is required in any document to be filed with the SEC after the date of this Agreement or any disclosure that, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with counsel, the directors' fiduciary duties under applicable law and Company Board determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalotherwise required under applicable law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Alabama National Bancorporation)
No Solicitation. Other than with respect (a) Subject to Section 5.2(b), the TransactionCompany and its Subsidiaries shall not, each of the Affiliated Companies and Qorus agrees that neither it nor shall they authorize or knowingly permit any of its officers, directors, managers, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not their respective Representatives to, directly or indirectly, initiate, (i) solicit, encourage initiate or otherwise induce the making, submission or announcement of, or encourage, facilitate or assist, any proposal or offer that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, (ii) furnish to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries, or afford to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal or offer with respect that would reasonably be expected to (i) 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 Qorus 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 Qorus 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 lead to an Acquisition Proposal, (iii) participate in, continue or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing engage in discussions or negotiations with any parties conducted heretofore Person with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable(iv) agree to, approve, endorse or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited recommend an Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement or agreement in principle, acquisition merger agreement or other similar agreement relating with respect to any an Acquisition Proposal, if, and only to the extent that Proposal (in each such case referred case, other than as permitted pursuant to in clause (BSection 5.3(c)), (Cv) authorize or permit any Representatives of the Company or any of its Subsidiaries retained by or acting directly or indirectly under the direction of the Company or any of its Subsidiaries, to take any action set forth in the preceding clauses (i) through (iv) of this Section 5.2(a), or (Dvi) aboverelease any third party from, Qorus' board or waive any provision of, any confidentiality or standstill agreement to which it is a party. Immediately after the execution and delivery of directors determines in good faiththis Agreement, after consultation the Company will, and will cause its Subsidiaries and Affiliates and their respective Representatives to, cease and terminate any existing activities, discussions or negotiations with outside legal counsel that such action is necessary any Person conducted heretofore with respect to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such any possible Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
No Solicitation. Other than with respect to From the Transactiondate hereof until the termination of this Agreement, each of the Affiliated Companies Hi/Lo will not, and Qorus agrees that neither it nor shall not authorize or permit, any of its officers, directors, managersemployees, attorneys, financial advisors, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives or those of any of its Subsidiaries (including any investment banker, attorney or accountant retained by it"Hi/Lo's Representatives") not to, directly or indirectly, initiate, (a) solicit, initiate or knowingly encourage any Takeover Proposal (as hereinafter defined), including without limitation by disclosure of non-public information, or otherwise facilitate (b) engage in discussions or negotiations relating to or accept any inquiries or the making Takeover Proposal; PROVIDED, HOWEVER, that nothing contained in this Section 5.8 shall prohibit Hi/Lo and its Board of any proposal or offer Directors from (i) taking and disclosing a position with respect to (ia tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) a mergerpromulgated by the SEC under the Exchange Act, reorganization, share exchange, consolidation or similar transaction involving it, (ii) at any saletime prior to the time Hi/Lo's stockholders shall have voted to approve the Merger, lease, exchange, mortgage, pledge, transfer engaging in discussions 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 Qorus 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 Qorus further agree that they and their officers, directors, managers, or managing members shallnegotiations with, and that they shall direct furnishing information (including non-public information) concerning Hi/Lo and use their reasonable best efforts to cause their agents and representatives not its Subsidiaries, businesses, properties or assets to, any third party which makes a Takeover Proposal (without any solicitation or initiation or knowing encouragement, directly or indirectly, engage by Hi/Lo or any of Hi/Lo's Representatives after the date of this Agreement) if the Board of Directors of Hi/Lo concludes in any negotiations concerninggood faith based upon advice of its outside counsel (who may be its regularly engaged outside counsel) that the failure to take such action is reasonablely likely to violate their obligations of such Board to Hi/Lo or to Hi/Lo's stockholders under applicable law, or provide any confidential information or data to(iii) provided this Agreement is terminated pursuant to Section 7.1(e), 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 accepting a Superior Proposal. Each of Prior to furnishing information to or entering into discussions or negotiations with any person, Hi/Lo shall receive from such person or entity an executed confidentiality agreement in reasonably customary form on terms not in the Affiliated Companies and Qorus agree that they will aggregate materially more favorable to such person or entity than the terms contained in the Hi/Lo Confidentiality Agreement (as defined in Section 5.2 hereof). Hi/Lo shall immediately cease and cause to be terminated any existing discussions solicitation, initiation, encouragement, activity, discussion or negotiations negotiation with any parties person conducted heretofore by Hi/Lo or any Hi/Lo Representative with respect to any Acquisition Proposal. Each of Takeover Proposal existing on the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.date
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hi Lo Automotive Inc /De)
No Solicitation. Other than with respect to Allegiance agrees that, during the Transactionterm of this Agreement, each of the Affiliated Companies it shall not, and Qorus agrees that neither it nor shall not authorize or permit any of its subsidiaries or any of its or its subsidiaries' directors, officers, directorsemployees, managers, agents or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not torepresentatives, directly or indirectly, to solicit, initiate, solicit, encourage or otherwise facilitate knowingly facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposal or offer with respect to (i) a any recapitalization, merger, reorganization, share exchange, consolidation or similar transaction other business combination involving itAllegiance, or acquisition of any capital stock (iiother than upon exercise of Allegiance Options that are outstanding as of the date hereof) any sale, lease, exchange, mortgage, pledge, transfer or purchase of all 15% or substantially all more of the assets or equity securities of itAllegiance and its subsidiaries, taken as a whole, in a single transaction or a series of related transactions transactions, or (iii) any tender offer or exchange offer for 20% or more combination of the outstanding shares foregoing (a "Competing Transaction"), or negotiate, explore or otherwise engage in discussions with any person (other than Cardinal, Subcorp or their respective directors, officers, employees, agents and representatives) with respect to any Competing Transaction or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement; provided that, at any time prior to the approval of Qorus Common Stock the Merger by the Allegiance Stockholders, Allegiance may furnish information to, and negotiate or otherwise engage in discussions with, any party who delivers a written proposal for a Competing Transaction which was not solicited or encouraged after the Company's Shares date of this Agreement if and so long as the Board of Directors of Allegiance determines in good faith by resolution duly adopted after consultation with its outside counsel (who may be its regularly engaged outside counsel) that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law and determines that such a proposal is, after consulting with CSFB (or any other nationally recognized investment banking firm), more favorable to Allegiance Stockholders from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions proposed by Cardinal in response to such proposal or offer being hereinafter referred to as an Competing Transaction) (a "Acquisition Superior Proposal"). Each of the Affiliated Companies and Qorus 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 Qorus agree that they Allegiance will immediately cease all existing activities, discussions and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each proposal for a Competing Transaction and request the return of the Affiliated Companies and Qorus agree that they will take the necessary steps all confidential information regarding Allegiance provided to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, any such parties prior to the Closing date hereof pursuant to the terms of any confidentiality agreements or otherwise. In the event that prior to the approval of the Merger by the Allegiance Stockholders the Board of Directors of Allegiance receives a Superior Proposal that was not solicited or encouraged after the date of this Agreement, and the Board of Directors of Allegiance determines in good faith by resolution duly adopted after consultation with its outside counsel (Awho may be its regularly engaged outside counsel) complying that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties under Applicable Law, the Board of Directors of Allegiance may (subject to this and the following sentences) withdraw, modify or change, in a manner adverse to Cardinal, the Allegiance Board Recommendation and/or comply with Rule 14e-2 promulgated under the Exchange Act with regard respect to an Acquisition Proposala Competing Transaction, if applicable, provided that it gives Cardinal three business days' prior written notice of its intention to do so (provided that the foregoing shall in no way limit or otherwise complying with affect Cardinal's right to terminate this Agreement pursuant to Section 7.1(d) at such time as the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations requirements of such subsection have been met). Any such withdrawal, modification or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying change of the Allegiance Board Recommendation shall not change the approval of the Board of Directors of Allegiance for purposes of causing any state takeover statute or recommendation by Qorus' board other state law to be inapplicable to the transactions contemplated hereby, including the Merger, the Allegiance Stock Option Agreement or the Support Agreements or change the obligation of directors Allegiance to present the Merger for approval at a duly called Allegiance Stockholders Meeting on the earliest practicable date determined in consultation with Cardinal. From and after the execution of this Agreement, approving Allegiance shall promptly (but in any event within one calendar day) advise Cardinal in writing of the receipt, directly or recommending indirectly, of any Acquisition Proposal inquiries, discussions, negotiations, or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement proposals relating to a Competing Transaction (including the specific terms thereof and the identity of the other party or parties involved) and promptly furnish to Cardinal a copy of any Acquisition Proposalsuch written proposal in addition to any information provided to or by any third party relating thereto. In addition, ifAllegiance shall promptly (but in any event within one calendar day) advise Cardinal, and only in writing, if the Board of Directors of Allegiance shall make any determination as to any Competing Transaction as contemplated by the proviso to the extent that in each such case referred to in clause (Bfirst sentence of this Section 5.3(d), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
No Solicitation. Other than with respect to From and after the Transactiondate hereof until the termination of this Agreement, each of the Affiliated Companies and Qorus agrees that neither it WCBI, nor any WCBI Subsidiary, nor any of its their respective officers, directors, managersemployees, or managing members shallrepresentatives, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives affiliates (including including, without limitation, any investment banker, attorney or accountant retained by it) not toWCBI or any of the WCBI Subsidiaries), will, directly or indirectly, initiate, solicit, solicit or knowingly encourage (including by way of furnishing non-public information or otherwise facilitate assistance) any inquiries or the making of any proposal that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with respect any Person in furtherance of such inquiries or to (i) a merger, reorganization, share exchange, consolidation obtain an Acquisition Proposal or similar transaction involving it, (ii) agree to or endorse 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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each , or authorize or permit any of the Affiliated Companies and Qorus further agree that they and their its officers, directors, managersor employees or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or managing members shallother representative retained by any of its Subsidiaries to take any such action, and WCBI shall notify PBI orally (within one business day) and in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which it or any of its Subsidiaries or any such officer, director or employee, or, to WCBI's Knowledge, investment banker, financial advisor, attorney, accountant or other representative of WCBI may receive relating to any of such matters, provided, however, that they nothing contained in this Section 6.10 shall direct and use their reasonable best efforts to cause their agents and representatives not to, directly prohibit the Board of Directors of WCBI from (i) complying with its disclosure obligations under federal or indirectly, engage in any negotiations concerning, state law; or provide any confidential (ii) furnishing information or data to, or have any entering into discussions or negotiations with, any person relating to or entity that makes an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B)that, (CA) or (D) above, Qorus' board the Board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and Directors of WCBI determines in good faith (after consultation with its financial advisors that and legal advisors), taking into account all legal, financial and regulatory aspects of the person or group proposal and the Person making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and the proposal, that such Acquisition Proposalproposal, if consummated as proposedconsummated, is materially reasonably likely to result in a transaction more favorable to the WCBI's stockholders of Qorus from a financial point of view than the Merger; (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"B) and the Board of Directors of WCBI determines in good faith (after consultation with its financial and legal advisors) that the failure to furnish information to or enter into discussions with such Superior Proposal is reasonably capable Person would likely cause the Board of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.Directors to breach its fiduciary duties to stockholders under
Appears in 1 contract
No Solicitation. Other than with respect to (a) From and after the Transactiondate of this Agreement, each of the Affiliated Companies Seller shall not, and Qorus agrees shall ensure that neither it nor its subsidiaries do not, and shall ensure that any of its officersofficer, directors, managersdirector or employee of, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney attorney, accountant or accountant retained by itother advisor or representative (collectively, the “Company Representatives”) not toof, Seller or any of its subsidiaries do not, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer with respect to (i) a mergersolicit, reorganization, share exchange, consolidation initiate or similar transaction involving itknowingly encourage the submission of any TSG Proposal, (ii) enter into 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 agreement with respect to any TSG Proposal or (iii) provide any tender offer or exchange offer for 20% or more of non-public information regarding the outstanding shares of Qorus Common Stock Companies or the Company's Shares (Business to any such proposal third party in connection with any TSG Proposal or offer being hereinafter referred to as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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 concerningor substantive discussions regarding any TSG Proposal; provided, or provide any confidential information or data tohowever, 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under receipt of the Exchange Act with regard to an Acquisition ProposalSeller Shareholder Approval, if applicableSeller, or otherwise complying with its subsidiaries and the Exchange Act; (B) providing information Company Representatives may, in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging TSG Proposal that was not solicited, provide any non-public information regarding the Companies to any third party making the TSG Proposal or engage in any negotiations or substantive discussions with such third party regarding any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition TSG Proposal, if, and only to the extent that in each such case referred to in clause (B)case, (C) or (D) above, Qorus' only if Seller’s board of directors determines in good faith, after consultation with outside Seller’s financial advisor and legal counsel counsel, that such TSG Proposal either is a Superior Proposal, or would be reasonably likely to lead to a Superior Proposal, and, after consultation with legal counsel, that failing to take such action is necessary to act in a manner consistent would be inconsistent with the directors' their fiduciary duties under applicable law Law. Seller shall, and determines in good faith after consultation shall cause each of its subsidiaries and Company Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by Seller, any of its subsidiaries or any Company Representative, with its financial advisors any parties conducted heretofore that the person has made or group making such Acquisition Proposal has adequate sources of financing indicated an intention to consummate such Acquisition Proposal and that such Acquisition make a TSG Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.
Appears in 1 contract
No Solicitation. Other than with respect to During the TransactionPre-Closing Period, each none of the Affiliated Companies and Qorus agrees that neither it Simplify, Bridge Media nor any of its their respective Affiliates or Subsidiaries, nor any of their respective officers, directors, managers, managers or managing members employees shall, and that it each of Simplify and Bridge Media shall direct instruct and shall use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) Subsidiaries’ respective 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 (i) a mergersolicit, reorganization, share exchange, consolidation initiate or similar transaction involving ittake any action to knowingly facilitate or encourage the submission or announcement of any Bridge Media Acquisition Proposal, (ii) enter into or participate in any salediscussions or negotiations with, leasefurnish any information relating to Bridge Media or afford access to the business, exchangeproperties, mortgageassets, pledgebooks or records of Bridge Media to, transfer otherwise knowingly cooperate in any way with, or purchase of all knowingly assist, participate in, facilitate or substantially all of the assets encourage any effort by any Third Party in connection with a Bridge Media Acquisition Proposal or equity securities of itan offer, taken as proposal or inquiry that could reasonably be expected to lead to a wholeBridge Media Acquisition Proposal, 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 Qorus 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 Qorus 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 accept, approve, endorse or indirectly, engage in recommend (or publicly propose or announce any negotiations concerning, intention or provide any confidential information or data desire to agree to, accept, approve, endorse or have recommend) any discussions with, any person relating to an Bridge Media Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (Aiv) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any agreement in principle, letter of intent, agreement in principleterm sheet, merger agreement, acquisition agreement, option agreement or other similar agreement instrument relating to any a Bridge Media Acquisition Proposal. It is agreed that any violation of the restrictions on Simplify or Bridge Media set forth in this Section by any officer, ifmanager or employee of Simplify or Bridge Media or any of their respective Affiliates or Subsidiaries, and only to the extent that in each any violation of such case referred to in clause (B), (C) restrictions by a Representative of Simplify or (D) above, Qorus' board Bridge Media or any of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent their respective Affiliates or Subsidiaries acting on behalf of Simplify or Bridge Media or any of their respective Affiliates or Subsidiaries with the directors' fiduciary duties under applicable law knowledge of Simplify or Bridge Media or resulting from actions directed or authorized by Simplify or Bridge Media or any of their respective Affiliates or Subsidiaries, or any of their respective officers, managers or employees, shall be deemed to constitute a breach of this Section by Simplify and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalBridge Media.
Appears in 1 contract
Samples: Business Combination Agreement (Arena Group Holdings, Inc.)
No Solicitation. Other than with respect to From and after the Transactiondate hereof until the Expiration Date, each of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members shallStockholder shall not, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney not permit his or accountant retained by it) not her Representatives to, directly or indirectly, (a) solicit, initiate, solicitpropose, knowingly facilitate or knowingly encourage any inquiries, proposals or offers that constitute, or that could reasonably be expected to lead to, an Acquisition Proposal, (b) enter into, engage in, continue or otherwise facilitate participate in any inquiries discussions or negotiations with any Third Party regarding an Acquisition Proposal, or furnish to any Third Party information or data or provide to any Third Party access to the making businesses, properties, assets, books or records, or personnel of the Company or any of its Subsidiaries, in each case with respect to any Acquisition Proposal or any inquiry, proposal or offer with respect that could reasonably be expected to (i) 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 Qorus 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 Qorus 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 lead to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (Ac) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement, contract, commitment or agreement in principle, acquisition agreement or other similar agreement relating principle with respect to any an Acquisition Proposal, ifor enter into any agreement, contract or commitment requiring the Company to abandon, terminate or fail to consummate the Contemplated Transactions or that could otherwise materially impede the ability of Parent and Merger Sub to consummate the Contemplated Transactions, in each case except as permitted pursuant to the terms of the Merger Agreement. It is understood that this Agreement limits the rights of each Stockholder only to the extent that such Stockholder is acting in each such case referred to Stockholder’s capacity as a stockholder of the Company, and nothing herein shall be construed as preventing such Stockholder or any of its Affiliates acting in clause its capacity as an officer or director of the Company, or as a trustee or fiduciary of any ERISA plan or trust, from fulfilling the obligations of such office (B)including, (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable subject to the stockholders limitations contained in Section 5.3 and Section 5.4 of Qorus from a financial point the Merger Agreement, the performance of view (obligations required by the fiduciary obligations of such Stockholder acting solely in its capacity as an officer, director, trustee or fiduciary) and no action taken solely in any such more favorable Acquisition Proposal being referred to capacity as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects an officer or director of the proposal and the person making the proposalCompany, or a trustee or fiduciary of any ERISA plan or trust, shall be deemed to constitute a breach of this Agreement.
Appears in 1 contract
No Solicitation. Other than with respect to (a) Neither the TransactionCompany nor any of its Subsidiaries shall, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor authorize or permit any of its officers, directors, managers, directors or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney financial advisor, attorney, accountant or accountant other representative retained by it) not to, directly it or indirectly, any of its Subsidiaries to initiate, solicit, encourage (including by way of furnishing information), or otherwise facilitate take any other action to facilitate, any inquiries or the making of any proposal or offer with respect to (i) 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 Qorus 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 Qorus further agree that they and their officers, directors, managerswhich constitutes, or managing members shall, and that they shall direct and use their reasonable best efforts may reasonably be expected to cause their agents and representatives not lead to, directly or indirectly, engage in any negotiations concerningAcquisition Proposal (as defined herein), or provide any confidential information enter into or data to, maintain or have any continue discussions with, or negotiate with any person relating in furtherance of such inquiries or to obtain an Acquisition Proposal, or otherwise facilitate agree to or endorse any effort or attempt to make or implement an Acquisition Proposal. Each , and the Company shall notify Sterling orally (within one business day) and in writing (as promptly as practicable), in reasonable detail, as to any inquiries and proposals which it or any of its Subsidiaries or any of their respective representatives or agents may receive; provided, however, that (i) the Affiliated Companies and Qorus agree that they will immediately cease and Company may furnish or cause to be terminated any existing furnished confidential and non-public information concerning the Company and its businesses, properties or assets to a third party (subject to execution by such third party of a confidentiality agreement containing confidentiality provisions substantially similar to those of the letter agreement entered into between the Company and Sterling dated November 12, 2002), (ii) following the execution of such a confidentiality agreement, the Company may engage in discussions or negotiations with any parties conducted heretofore a third party executing such an agreement, (iii) following receipt of an Acquisition Proposal, the Company may take and disclose to its shareholders a position with respect to any such Acquisition Proposal. Each , including, if such Acquisition Proposal is a tender offer, the Company Board may take and disclose to the Company's shareholders a position contemplated by Rule 14e-2 under the Exchange Act, and/or (iv) following receipt of an Acquisition Proposal, the Affiliated Companies and Qorus agree that they will take the necessary steps Company Board may withdraw or modify its recommendation referred to promptly inform the individuals or entities in Section 5.28, but in each case referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing foregoing clauses (Ai) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; through (Biv) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines the Company Board shall conclude in good faith, after consultation with faith (on the basis of advice from outside legal counsel counsel) that such action is necessary required in order for the Company Board to act in a manner consistent with the directors' satisfy its fiduciary duties obligations under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposallaw; provided, if consummated as proposedfurther, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposal.that
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sterling Bancshares Inc)
No Solicitation. Other than with respect to the Transaction(a) The Company shall not, each of the Affiliated Companies and Qorus agrees that neither nor shall it nor permit any of its officersSubsidiaries to, directorsnor shall it authorize or permit any officer, managersdirector or employee of, or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by itother advisor or representative of, the Company or any of its Subsidiaries (collectively, "Company Representatives") not to, directly or indirectly, (i) solicit, initiate, solicit, encourage or otherwise knowingly facilitate any inquiries or the making submission of any proposal Acquisition Proposal (as defined in Section 5.01(d)) or offer with respect to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving it, (ii) enter into or participate in any salediscussions or negotiations regarding, leaseor furnish to any person any information with respect to, exchangeany Acquisition Proposal; provided, mortgage-------- however, pledgethat notwithstanding any other provision of this Agreement, transfer or purchase (A) the ------- Company's Board of all or substantially all Directors may take and disclose to the stockholders of the assets Company a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act and (B) following receipt from a third party, without any solicitation, initiation 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 Qorus 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 Qorus 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 toencouragement, directly or indirectly, engage in by the Company or any negotiations concerningCompany Representative, or provide any confidential information or data to, or have any discussions with, any person relating to an of a bona fide Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. Each of (w) the Affiliated Companies and Qorus agree that they will immediately cease and cause to be terminated any existing Company may engage in discussions or negotiations with any parties conducted heretofore with respect such third party and may furnish such third party information concerning it, and its business, properties and assets if such third party executes a confidentiality agreement no less favorable to any Acquisition Proposal. Each the Company than the existing confidentiality agreement between the Company and WCAS VIII (the "Confidentiality Agreement") (except that such third party confidentiality agreement need not require approval or request of the Affiliated Companies and Qorus agree that they will take Company's Board of Directors prior to the necessary steps making of an offer or proposal to promptly inform such Board of Directors), (x) the individuals Board of Directors of the Company may withdraw, modify or entities not make its recommendation referred to in the first sentence hereof Section 3.01(z), (y) terminate this Agreement in accordance with Article VII or (z) take any combination of the obligations undertaken actions described in this Section 6.7. Notwithstanding anything contained clauses (w), (x) and (y) above, but in this Agreement each case referred to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing clauses (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; and (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board the Company's Board of directors determines Directors shall conclude in good faith, after consultation with the Company's outside legal counsel counsel, that such action is necessary required in order for the Company's Board of Directors to act in a manner consistent with the directors' its fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalLaw.
Appears in 1 contract
No Solicitation. Other than with respect to the Transaction, each of the Affiliated Companies and Qorus agrees that neither it nor any of its officers, directors, managers, or managing members shall, and that it (a) The Company shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) not tonot, directly or indirectly, initiatethrough any officer, solicitdirector, employee, representative or agent of the Company or any of its subsidiaries, solicit or encourage or otherwise facilitate the initiation of (including by way of furnishing information) any inquiries or the making of proposals regarding any proposal or offer with respect to (i) a merger, reorganizationsale of assets, share exchangesale of shares of capital stock (including, consolidation without limitation, by way of a tender offer) or similar transaction transactions involving it, (ii) the Company or any sale, lease, exchange, mortgage, pledge, transfer or purchase of all or substantially all subsidiaries of the assets or equity securities of it, taken Company that if consummated would constitute an Alternative Transaction (as a whole, in a single transaction or series of related transactions or defined below) (iii) any tender offer or exchange offer for 20% or more of the outstanding shares of Qorus Common Stock foregoing inquiries or the Company's Shares (any such proposal or offer proposals being hereinafter referred to herein as an "Acquisition Proposal"). Each of the Affiliated Companies and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing Nothing contained in this Agreement shall prevent the board Board of directors Directors of Qorus, or their respective representatives from, prior to the Closing Company from (Ai) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing furnishing information in response to a request therefore by a person who third party which has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or that the Board of Directors of the Company concludes in good faith after consulting with a nationally recognized investment banking firm would, if consummated, constitute a Superior Proposal (Das defined below) withdrawing or modifying the approval or recommendation by Qorus' board of directors not solicited in violation of this Agreement, approving provided that such third party has executed an agreement with confidentiality provisions substantially similar to those of the Company Confidentiality Agreement or recommending any (ii) subject to compliance with the other terms of this Section 4.02, including Sections 4.02(c) and (d), considering and negotiating a bona fide Acquisition Proposal or causing that the applicable party Board of Directors of the Company concludes in good faith after consulting with a nationally recognized investment banking firm would, if consummated, constitute a Superior Proposal not solicited in violation of this Agreement; provided, however, that, as to enter into any letter each of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, clauses (i) and only to the extent that in each such case referred to in clause (Bii), (Cx) or such actions occur at a time prior to approval of the Merger and this Agreement at the Company Stockholders Meeting and (Dy) above, Qorus' board the Board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with Directors of the directors' fiduciary duties under applicable law and Company reasonably determines in good faith (after due consultation with independent counsel, which may be Fried, Frank, Harris, Shriver & Jacobson) that xx xx or xx xxxxxnably likely to be required to do so in order to discharge properly its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalfiduciary duties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (General Semiconductor Inc)
No Solicitation. Other than with respect to the Transaction(a) Peninsula shall not, and shall cause each of the Affiliated Companies its Subsidiaries and Qorus agrees that neither it nor any of its and their respective officers, directors, managersemployees, or managing members shallagents, and that it shall direct and use its reasonable best efforts to cause its and its agents investment bankers, financial advisors, attorneys, accountants and other retained representatives (including any investment bankereach, attorney or accountant retained by ita “Representative”) not to, directly or indirectlyindirectly (i) solicit, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information), or take any other action designed to facilitate, any inquiries or the making of proposals regarding any proposal or offer with respect to (i) a merger, reorganization, share exchange, consolidation consolidation, sale of assets, sale of shares of capital stock (including, by way of a tender offer) or similar transaction transactions involving itPeninsula 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 sale, lease, exchange, mortgage, pledge, transfer discussions or purchase of all negotiations regarding an Alternative Transaction or substantially all of the assets or equity securities of it, taken as a whole, in a single transaction or series of related transactions Acquisition Proposal or (iii) enter into any tender offer agreement regarding any Alternative Transaction or exchange offer for 20% or more Acquisition Proposal; provided, however, that, in the event that (x) Peninsula shall receive a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Agreement, (y) prior to receipt of the outstanding shares of Qorus 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 Qorus further agree that they and their officersRequisite Shareholder Approval, 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of QorusPeninsula determines in its good faith judgment, or their respective representatives fromafter receiving the advice of outside counsel, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition that, in light of such Superior Proposal, if applicablePeninsula fails to participate in such discussions or negotiations with, or otherwise complying with provide such information to, the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition party making the Superior Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying , the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter Peninsula would be in violation of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' its fiduciary duties under applicable law law, and determines in good faith after consultation (z) Peninsula has given Mackinac at least five Business Days’ notice of its intention to do so, Peninsula may (A) furnish information with respect to it and its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable Subsidiaries to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that party making such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of pursuant to a customary confidentiality agreement containing terms no less restrictive to the proposal and the person party making the proposalSuperior Proposal than the terms contained in the Confidentiality Agreement; provided that a copy of all such written information is simultaneously provided to Mackinac, and (B) participate in discussions regarding such Superior Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Mackinac Financial Corp /Mi/)
No Solicitation. Other than with respect Unless and until this Agreement shall have been -- ------------ properly terminated by either party pursuant to Section 8.01 hereof, neither the Transaction, each of the Affiliated Companies and Qorus agrees that neither it Seller nor any of its subsidiaries shall (and the Seller and each of its subsidiaries shall use all reasonable efforts to cause its officers, directors, managersemployees, or managing members shallrepresentatives and agents, including, but not limited to, investment bankers, attorneys and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment bankeraccountants, attorney or accountant retained by it) not to), directly or indirectly, initiateencourage, solicit, encourage initiate or, subject to the fiduciary obligations of the Seller's Board of Directors (as advised in writing by outside counsel), participate in any discussions or otherwise facilitate negotiations with, or provide any inquiries information to, any corporation, partnership, person or other entity or group (other than the making of Buyer and its affiliates or representatives) concerning any proposal or offer with respect to (i) a merger, reorganizationtender offer, share exchangesale of substantial assets (other than as otherwise permitted under this Agreement), consolidation sale of shares of capital stock or debt securities or similar transaction involving it, the Seller or any of its subsidiaries (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 Qorus Common Stock or the Company's Shares (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalTransaction"). Each of ----------- ----------- Notwithstanding the Affiliated Companies and Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contraryforegoing, nothing contained in this Agreement Section 5.03 shall prevent prohibit the board Seller or its Board of directors of Qorus, or their respective representatives from, prior Directors from taking and disclosing to the Closing (ASeller's stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) complying with Rule 14e-2 promulgated under the Exchange Act or from making such disclosure to the Seller's stockholders which, in the judgment of the Board of Directors, with regard the written advice of outside counsel, may be required under applicable law. The Seller will immediately communicate to the Buyer the terms of any proposal, discussion, negotiation or inquiry relating to an Acquisition ProposalTransaction and the identity of the party making such proposal or inquiry which it may receive in respect of any such transaction (which shall mean that any such communication shall be delivered no less promptly than by telephone within twenty-four (24) hours of the Seller's receipt of any such proposal or inquiry) or its receipt of any request for information from the OTS, if applicableFederal Reserve Board, DOJ or otherwise complying any other governmental agency or authority with the Exchange Act; (B) providing information in response respect to a request therefore by a person who has made a bona fide unsolicited proposed Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any Acquisition Proposal, if, and only to the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of the proposal and the person making the proposalTransaction.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Bank of Boston Corp)
No Solicitation. Other than (a) Each of the Company and Parent (each, a “No-Shop Party” and, with respect to each other, the Transaction, each of the Affiliated Companies and Qorus “Other Party”) agrees that neither it nor any of its officers, directors, managers, or managing members Subsidiaries shall, and that it each No Shop Party shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including any investment banker, attorney or accountant retained by it) Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, solicitapprove, encourage endorse, recommend or otherwise facilitate encourage, or take any inquiries other action designed to, or which would reasonably be expected to, 56 facilitate, any inquiry or the making or announcement of any proposal or offer with that constitutes, or that would reasonably be expected to lead to, an Acquisition Proposal in respect to (i) a merger, reorganization, share exchange, consolidation or similar transaction involving itof such No-Shop Party, (ii) engage, continue or otherwise participate in any salediscussions or negotiations regarding, leaseor furnish (or cause to be furnished) non-public information relating to such No-Shop Party or any of its Subsidiaries or afford access to properties, exchange, mortgage, pledge, transfer books or purchase of all or substantially all records of the assets No-Shop Party or equity securities any of itits Subsidiaries to any Person in connection with or in furtherance of any Acquisition Proposal, taken as a whole, in a single transaction or series of related transactions or (iii) any tender offer approve or exchange offer for 20% or more of the outstanding shares of Qorus 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 Qorus further agree that they and their officers, directors, managersrecommend, or managing members shall, and that they shall direct and use their reasonable best efforts propose to cause their agents and representatives not to, directly approve or indirectly, engage in any negotiations concerningrecommend, or provide any confidential information consummate, execute 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement to the contrary, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior to the Closing (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (D) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, exchange agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement relating agreement, constituting or related to, or that is intended to or would reasonably be expected to lead to an Acquisition Proposal (other than confidentiality agreements contemplated by this Section 7.3), or (iv) propose publicly or agree to do any of the foregoing. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this paragraph by any Representative of a No-Shop Party or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of such No-Shop Party or any of its Subsidiaries or otherwise, shall be a breach of this Section 7.3(a) by such No-Shop Party. Notwithstanding the foregoing, at any time prior to (but not after) obtaining the Company Shareholder Approval or the Parent Shareholder Approval, as applicable, a No-Shop Party may, directly or indirectly through its Representatives, (i) furnish information and access, but only in response to a written request for information or access, to any person making an Acquisition Proposal which was not solicited, initiated, knowingly encouraged or knowingly facilitated by the No-Shop Party or any of its Subsidiaries, Affiliates or Representatives and (ii) may participate in discussions and negotiate with such Person concerning any such unsolicited Acquisition Proposal, if, if and only to the extent that all of the following conditions are met: (A) the No-Shop Party has not breached this Section 7.3(a) in each any material respect with respect to such case referred to in clause Acquisition Proposal, (B), (C) or (D) above, Qorus' board the No-Shop Party’s Board of directors Directors determines in good faith, after consultation with receipt of advice from outside legal counsel and a financial advisor of nationally recognized reputation, that such action Acquisition Proposal constitutes or is necessary reasonably likely to act in lead to a manner consistent Superior Proposal, and (C) the No-Shop Party enters into a customary confidentiality agreement with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group Person making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, which is materially more (1) no less favorable to the stockholders No-Shop Party and (2) no less restrictive of Qorus from a financial point of view such Person than the Confidentiality Agreement, dated May 28, 2010, as amended on June 1, 2010, between Parent and the Company (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"the “Confidentiality Agreement”) and determines in good faith that all such Superior Proposal information provided thereunder has previously been provided to the Other Party or is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects of provided to the proposal and the person making the proposalOther Party concurrently with its provision to such Person.
Appears in 1 contract
No Solicitation. Other than (a) During the period commencing with respect the execution and delivery of this Agreement until the earlier to the Transaction, each occur of the Affiliated Companies termination of this Agreement pursuant to its terms and Qorus agrees that neither it the Effective Time, Twin Vee Inc. and its subsidiaries shall not, nor will they authorize any of its their respective officers, directors, managers, affiliates or managing members shall, and that it shall direct and use its reasonable best efforts to cause its and its agents and other representatives (including employees or any investment banker, attorney or accountant other advisor or representative retained by it) not any of them to, directly or indirectly, (i) solicit, initiate, solicit, encourage or otherwise induce the making, submission or announcement of any Acquisition Proposal (as defined in Section 5.5(b) hereof), (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or offer with respect may reasonably be expected to (i) a mergerlead to, reorganizationany Acquisition Proposal, 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 Qorus 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 Qorus 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 Qorus agree that they will immediately cease and cause to be terminated any existing discussions or negotiations with any parties conducted heretofore person with respect to any Acquisition Proposal. Each of the Affiliated Companies and Qorus agree that they will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 6.7. Notwithstanding anything contained in this Agreement , except as to the contraryexistence of these provisions, nothing contained in this Agreement shall prevent the board of directors of Qorus, or their respective representatives from, prior (iv) subject to the Closing (Aterms of Section 5.2(c) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an hereof, approve, endorse or recommend any Acquisition Proposal, if applicable, or otherwise complying with the Exchange Act; (B) providing information in response to a request therefore by a person who has made a bona fide unsolicited Acquisition Proposal; (C) engaging in any negotiations or discussions with any person who has made a bona fide unsolicited Acquisition Proposal or otherwise facilitating any effort or attempt to implement an Acquisition Proposal; or (Dv) withdrawing or modifying the approval or recommendation by Qorus' board of directors of this Agreement, approving or recommending any Acquisition Proposal or causing the applicable party to enter into any letter of intent, agreement in principle, acquisition intent or similar document or any contract agreement or other similar agreement commitment contemplating or otherwise relating to any Acquisition Proposal, if, and only to . Without limiting the extent that in each such case referred to in clause (B), (C) or (D) above, Qorus' board of directors determines in good faith, after consultation with outside legal counsel that such action is necessary to act in a manner consistent with the directors' fiduciary duties under applicable law and determines in good faith after consultation with its financial advisors that the person or group making such Acquisition Proposal has adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, is materially more favorable to the stockholders of Qorus from a financial point of view (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") and determines in good faith that such Superior Proposal is reasonably capable of being consummated, taking into account legal, financial, regulatory and other aspects generality of the proposal foregoing, the parties hereto understood and agree that any violation of the person making the proposal.restrictions set forth in this Section 5.6(a) by any officer, director or employee of Twin Vee Inc. or any of its subsidiaries or any investment banker, attorney or other advisor or representative of Twin Vee Inc. or any of its subsidiaries shall be deemed to be a breach of this Section 5.5 (a) by Twin Vee Inc.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Twin Vee PowerCats, Co.)
