Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing. (b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement. (c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples. (d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless: (i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇; (ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal); (iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and (iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice. (e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure. (f) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Limestone Bancorp, Inc.), Merger Agreement (Limestone Bancorp, Inc.)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, and nor shall cause it authorize or permit any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative (collectively, "REPRESENTATIVES") of, the Company or any Company Subsidiary to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) initiate or induce any inquiry, proposal or offer with respect to, or encourage the making or completion submission of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition ProposalProposal (as defined below), (ii) enter into, continue into any agreement with respect to any Acquisition Proposal or otherwise (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person or Group person any confidential or nonpublic information with respect to to, or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing in this SECTION 6.4 or elsewhere in this Agreement shall prohibit the Company Board from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this SECTION 6.4; and provided, further, that nothing in this SECTION 6.4 or elsewhere in this Agreement shall prohibit the Company, before the expiration of the Offer or adoption of this Agreement by the Company Shareholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any person in response to an Acquisition Proposal made, submitted, or announced by such person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a termination of this Agreement pursuant to SECTION 9.1(C), entering into an agreement accepting or providing for, a Superior Proposal, and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (iv1) approve, endorse or recommend, or propose to approve, endorse or recommend any such Acquisition Proposal is not attributable to a Breach by the Company of this SECTION 6.4(A) or any agreement related thereto, SECTION 6.4(B); (v2) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any Board of Directors of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines Company concludes in good faith, after consultation with Limestone’s its outside legal and financial advisorscounsel, that (i) such Acquisition Proposal constitutes or it is reasonably capable of becoming a Superior Proposal, (ii) likely that the failure of the Limestone Board to take such action would cause the Limestone Board to violate constitute a Breach of its fiduciary duties to the shareholders of Limestone Company Shareholders under applicable Law; provided(3) prior to furnishing any such information to, that Limestone receives from or entering into discussions or negotiations with, such Person or Group an executed confidentiality agreement containing terms no less favorable to person, the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing Company gives Parent written notice of the receipt identity of any Acquisition Proposalsuch person, request or inquiry and the terms and conditions of such Acquisition Proposal and the Company's intention to furnish information to, or enter into discussions or negotiations with, such Person; (4) the Company receives from such Person an executed confidentiality agreement which shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, restrictions on trading and hostile take-over activities and other terms no less favorable to the Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such Person, the Company furnishes such information to Parent (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this SECTION 6.4(A), the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent and Buyer regarding any proposal that constitutes, or may reasonably be expected to lead to, a Acquisition Proposal, request and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this SECTION 6.4.
(b) Neither the Company Board nor any committee thereof shall (i) withdraw or inquirymodify, or propose to withdraw or modify, in a manner adverse to Parent or Buyer, the approval or recommendation by the Company Board or any such committee of this Agreement, the Offer or the Merger, (ii) shall promptly provide approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to Peoples a written summary of the material terms of such any Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developmentsapprove or recommend, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide or propose to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person approve or Group in connection with recommend, any Acquisition Proposal which has not previously been provided to Peoples.
(d) Proposal. Notwithstanding anything herein to the contraryforegoing, at any time if, prior to the Limestone Meetingacceptance for payment of Shares pursuant to the Offer, Limestone may accept or approve the Company receives a Superior Proposal thereby withdrawing its recommendation and a majority of the Agreement (“Acceptance directors of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined Company determine in good faith, after consultation with outside legal counsel, that it is reasonably likely that the failure to take do so would constitute a Breach of their fiduciary duties to Company Shareholders imposed by applicable Law, the Company Board may withdraw its approval or recommendation of the Offer, the Merger and this Agreement and, in connection therewith, approve or recommend such action Superior Proposal, provided, that the Company Board shall give Parent two Business Days notice prior to withdrawing its recommendation or entering into an agreement with respect to or recommending a Superior Proposal; and pay to Parent the Termination Fee Provided for in SECTION 9.3(A) pursuant to SECTION 9.3(D).
(c) The Company promptly shall advise Parent of any Acquisition Proposal or any inquiry with respect to or that could lead to any Acquisition Proposal, the identity of the person or group making any such Acquisition Proposal or inquiry and the material terms of any such Acquisition Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status, including any change to the details, of any such Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence with other written material sent or provided (unless previously provided) to the Company from any third party in connection with any Acquisition Proposal or sent or provided by the Company to any third party in connection with any Acquisition Proposal.
(d) Nothing contained in this SECTION 6.4 shall prohibit the Company from taking and disclosing to its Shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's Shareholders if, in the good faith judgment of the Company Board, after receiving advice from outside legal counsel, the failure so to disclose would cause it to violate constitute a Breach of its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (3 D Systems Corp), Merger Agreement (3 D Systems Corp)
Acquisition Proposal. (a) From and after the date hereof, without the prior written consent of this Agreement through Purchaser, the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Company shall not, not and shall will cause any of its Subsidiaries and the its and its Subsidiaries' respective officers, directors, employeesagents and representatives including the Financial Advisor (collectively, advisors and other agents of Limestone and its Subsidiaries "Representatives") not to, directly or indirectly (i) directly or indirectly, solicit, initiate, encourage, facilitate initiate or --------------- encourage (including by way of providing informationfurnishing information or assistance) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that which constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (vii) enter into or participate in any agreement contemplating discussions or otherwise negotiations regarding any Acquisition Proposal, or (iii) provide any confidential or nonpublic information or data to any Person relating to any Acquisition Transaction Proposal; provided, however, nothing contained herein shall prohibit the Company Board from taking and disclosing to its shareholders a position with respect to an unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 under the Exchange Act. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or Acquisition Proposal, (vi) enter into negotiation with any agreement Persons conducted heretofore by it or agreement its Representatives with any Persons other than Purchaser and its Affiliates and shall demand the return or destruction of any confidential information previously provided to any third party in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate connection therewith. Notwithstanding the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding foregoing and anything to the contrary contained in this Section 6.06(a5.5 or in any other provision of this Agreement, the Company and the Company Board may ask questions of, consider and clarify a proposal from, and conduct a due diligence investigation of (but not negotiate with or provide any information to, without the Purchaser's prior written consent) any third party making an unsolicited Acquisition Proposal (a "Potential Acquirer"), ------------------ solely for the purpose of evaluating such Acquisition Proposal, if Limestone the Company Board or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faithcommittee thereof determines, after consultation with Limestone’s outside the Financial Advisor and the Company's legal and financial advisorscounsel, that (iA) such third party has submitted to the Company an Acquisition Proposal constitutes or is reasonably capable which has a reasonable likelihood of becoming resulting in a Superior ProposalProposal (as defined in Section 5.5(d)), and (iiB) the failure of to participate in such process would be inconsistent with the Limestone Board to take such action would cause the Limestone Board to violate its Company Board's fiduciary duties to the shareholders of Limestone under applicable Law; providedlaw. In the event that the Company shall determine to enter into the process described above, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to shall receive any Acquisition Proposal, Limestone it shall (i) advise Peoples promptly inform Purchaser in writing as to the identity of the receipt of any Acquisition Proposal, request or inquiry Potential Acquirer and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal. If the Company, request or inquiry including after consultation with the identity of Financial Advisor and the Person or Group making the Company's legal counsel, determines that an Acquisition Proposal is a Superior Proposal, and the failure to consider such Acquisition Proposal would be inconsistent with the Company Board's fiduciary duties under applicable law, then it shall promptly notify Purchaser of such determination, and the Company and the Company Board, if the Company has complied with the provisions of this Section 5.5, may participate in discussions or negotiations (iiiincluding, as a part thereof, making any counterproposal) with the Potential Acquirer. In the event that the Company shall determine to provide any information to such Potential Acquirer following its determination that such Acquisition Proposal is a Superior Proposal it shall promptly (within two business days) inform Purchaser in writing as to the fact that information is to be provided. The Company agrees that any non-public information furnished to a Potential Acquirer will be pursuant to a confidentiality agreement on terms no less favorable to the Company than the Confidentiality Agreement. The Company will keep Peoples promptly the Purchaser apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy the terms and conditions of all material documentation and correspondence relating theretothe Acquisition Proposal) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(di) Subject to Section 5.5(c) below, neither the Company Board nor any committee thereof shall withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Purchaser, the approval or recommendation by the Company Board or committee thereof of this Agreement and the Merger unless a breach of Section 4.6 has occurred and remains uncured for a period of ten business days.
(ii) Notwithstanding anything herein to Section 5.5(b)(i) above, the contrary, at Company Board (or any time prior to the Limestone Meeting, Limestone committee thereof) may accept withdraw or approve a Superior Proposal thereby withdrawing modify its approval or recommendation of this Agreement or the Agreement (“Acceptance Merger, even if a breach of Superior Proposal”)Section 4.6 has not occurred and remain uncured, if and only if (x) from and after the date hereof, Limestone Company has complied with Sections 6.02 and 6.06the provisions of this Section 5.5, and in the event that the Company Board (yor any committee thereof) the Limestone Board has determined determines in good faith, after consultation with outside the Financial Advisor and the Company's legal counsel, that the Acquisition Proposal is a Superior Proposal, and that the failure to take such action would cause it to violate its be inconsistent with the Company Board's or any such committee's fiduciary duties under applicable law; provided.
(c) Notwithstanding the foregoing, in the event that the Limestone Board may not effect there exists a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal before the Company Board or any committee thereof and in the Limestone Board shall have concluded in reasonable good faith judgment of the Company Board (or such committee), after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposalcorporate counsel to the Company, after taking into account any amendment or modification the failure to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of accept such Superior Proposal (including would be inconsistent with the identity fiduciary duties of the Person Company Board (or Group making the Superior Proposal);
(iiisuch committee) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires Company Stockholders under applicable law, the Company Board (or such committee) may pursuant to
Section 9.1 (f) (and subject to so negotiatethis sentence) to make such adjustments to the terms and conditions of terminate this Agreement so that and concurrently with such Superior Proposal ceases termination, cause the Company to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) enter into an acquisition agreement with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the ExchangeSuperior Proposal; provided, however, that prior to any such disclosure action, the Company shall (A) notify Purchaser in writing that it intends to enter into an agreement relating to an a Superior Proposal (which notice shall include the most recent draft of such Superior Proposal), (B) during the five business days following the Company's notice (or such longer period as agreed to by the parties), the Company shall negotiate in good faith with Purchaser to make such adjustments in the terms and conditions of such Agreement such that the Acquisition Proposal shall be deemed is no longer a change Superior Proposal, and (C) pay the Termination Fee to Purchaser in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation full and in such disclosureimmediately available funds.
(fd) As used in For purposes of this Agreement:, a "Superior Proposal" means any bona fide written proposal (or its most recent amended or modified terms, if amended or modified) made by a Potential Acquirer to enter into an Acquisition Proposal, the effect of which would be that (i) the Company Stockholders would beneficially own less than 50% of the voting stock, common stock and participating stock of the combined or on-going entity, or (ii) the transaction would result in the sale, transfer or other disposition of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole, and which the Company determines in its good faith judgment, based on among other things, the advice of the Financial Advisor, if consummated, would result in a transaction more favorable to the Company Stockholders from a financial point of view than the Merger, taking into account all relevant factors (including whether, in the good faith judgment of the Company Board, after obtaining the advice of the Financial Advisor, the Potential Acquirer is reasonably able to finance the transaction and whether such transaction is reasonably capable of being completed, and any proposed changes to this Agreement that may be proposed by the Purchaser in response to such Acquisition Proposal). An Acquisition Proposal that is conditioned on due diligence may constitute a Superior Proposal if it otherwise meets the foregoing definition.
Appears in 2 contracts
Sources: Merger Agreement (Net2phone Inc), Merger Agreement (Netspeak Corp)
Acquisition Proposal. (a) From the date of this Agreement through hereof until the first to occur earlier of the Effective Time or Closing and the termination of this Agreement, except as provided in expressly permitted by this Section 6.06(b)7.4, Limestone the Company shall not and the Seller shall not, and shall cause any the Company, its Affiliates and each of their respective directors and officers not to, and Seller shall instruct and use its Subsidiaries reasonable best efforts to cause its and the officers, directors, employees, advisors and Company’s other agents of Limestone and its Subsidiaries Representatives not to, directly or indirectly indirectly, take, or direct any other Person to take on its behalf, any action to (i) solicit, initiate, encourage, knowingly encourage or knowingly facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, Proposal or any inquiry, proposal or offer that is could reasonably likely be expected to lead to any Acquisition Proposal, Proposal or the making or consummation thereof; (ii) other than to inform any Person of the existence of the provisions contained in this Section 7.4, enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an or enter into any agreement with respect to, any Acquisition ProposalProposal or any inquiry, (iii) take any other action to facilitate any inquiries proposal or the making of any proposal offer that constitutes or may could reasonably be expected to lead to any Acquisition Proposal (other than an Acquisition Proposal, Acceptable Confidentiality Agreement in accordance with this Section 7.4); (iviii) approve, endorse or recommend, or propose to approve, endorse or recommend any an Acquisition Proposal or any agreement related theretoletter of intent (whether binding or non-binding), (v) enter into any agreement contemplating memorandum of understanding or otherwise relating other Alternative Acquisition Agreement or that would reasonably be expected to any Acquisition Transaction lead the Company to abandon or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, under this Agreement; or (viiiv) resolve, propose or agree to do any of the foregoing.
(b) . Notwithstanding anything the foregoing, at any time prior to obtaining the contrary Seller Shareholder Approval, in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited response to a bona fide written Acquisition Proposal not solicited in violation of this Agreement that did not the Board of Directors of Seller determines in good faith (after consultation with its financial advisor and outside legal counsel) constitutes or would reasonably be expected to result from or arise in connection a Superior Proposal, and such action is reasonably likely to be necessary in order for the directors to comply with a breach their fiduciary duties under applicable Law of Section 6.06(a)New Jersey, Limestone Seller and its Representatives may take any action described in Section 6.06(a)(ii), if, (A) furnish information with respect to the Company and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) Business to the Person making such Acquisition Proposal constitutes or is reasonably capable of becoming (and its Representatives) pursuant to a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed customary confidentiality agreement containing terms no less favorable to the disclosing party than those set forth in the Confidentiality Agreement (it being understood that such confidentiality agreement need not prohibit the making or amending of an Acquisition Proposal to the extent such Acquisition Proposal is made directly to Seller or the Company) (an “Acceptable Confidentiality Agreement”); provided, that all such information (to the extent that such information has not been previously provided or made available to Buyer) is provided or made available to Buyer prior to, or substantially concurrently (and in any event within 24 hours) with the time it is provided or made available to such Person and thereafter shall keep Buyer reasonably informed of all material developments affecting the status of and any material changes to the material terms of any such Acquisition Proposal; provided, further, if the Person making such Acquisition Proposal is or would reasonably be viewed as a competitor of Seller, the Company or the Business, Seller shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 7.4 other than in accordance with customary “clean room” or other similar procedures designed to limit any adverse effect on Seller, the Company or the Business of the disclosure of competitively sensitive information and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal. Within five (5) days from the date of this Agreement, Seller shall, and shall direct its Representatives to, request the return or destruction of all material non-public information provided to third parties prior to the date of this Agreement that have, within the twelve (12) month period preceding the date of this Agreement, entered into confidentiality agreements relating to a possible Acquisition Proposal and immediately terminate access by any third party to any data room (virtual or actual) containing any of Seller’s material non-public information.
(cb) As promptly as practicable The Board of Directors of Seller shall not (but i) withhold, withdraw, modify or qualify (or publicly propose to withhold, withdraw, modify or qualify) in no event more than 48 hoursany manner adverse to Buyer the Seller Board Recommendation, (ii) following receipt of approve or recommend, or publicly declare advisable, any Acquisition Proposal Proposal, (iii) fail to include the Seller Board Recommendation in the Proxy Statement, or (iv) approve or recommend, or publicly declare advisable or publicly propose to enter into, any request for nonpublic information letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, collaboration agreement or inquiry other agreement with respect to, or that is intended or would reasonably be expected to lead to to, any Acquisition ProposalProposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”, Limestone shall and any of the actions set forth in the foregoing clauses (i) advise Peoples in writing of through (iv), a “Seller Adverse Recommendation Change”) or (vi) cause or permit the receipt of any Company to enter into an Alternative Acquisition ProposalAgreement; provided, request or inquiry and the terms and conditions of such Acquisition Proposalhowever, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, if at any time prior to obtaining the Limestone MeetingSeller Shareholder Approval, Limestone may accept or approve a Superior (i) an unsolicited bona fide Acquisition Proposal thereby withdrawing its recommendation not obtained in violation of this Agreement is made (and not withdrawn) and the Agreement (“Acceptance Board of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined Directors of Seller concludes in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take (x) such Acquisition Proposal would, if consummated, constitute a Superior Proposal, and (y) such action would cause it is necessary in order for the directors to violate its comply with their fiduciary duties under applicable lawLaw of New Jersey, the Board of Directors of Seller may (A) make a Seller Adverse Recommendation Change or (B) terminate this Agreement pursuant to Section 9.1, or (ii) an Intervening Event has occurred and the Board of Directors of Seller concludes in good faith, after consultation with its financial advisor and outside legal counsel, that (x) such Intervening Event materially adversely affects the advisability of this Agreement from a financial point of view and (y) such action is reasonably likely to be necessary in order for the directors to comply with their fiduciary duties under applicable Law, the Board of Directors of Seller may make a Seller Adverse Recommendation Change; provided, that the Limestone Board may of Directors of Seller shall not effect be entitled to make a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification Seller Adverse Recommendation Change pursuant to this Section 7.4(c) or terminate this Agreement agreed pursuant to or proposed by ▇▇▇▇▇▇▇;
Section 9.1 unless it has first (ii1) Limestone shall have provided caused the Company to provide Buyer at least four (4) Business Days’ prior written notice advising Buyer that it intends to Peoples at least five business days in advance take such action (the a “Notice Periodof Superior Proposal/Intervening Event”) of taking such action), which notice shall advise Peoples (I) state that the Limestone Board Seller has received a Superior ProposalProposal or an Intervening Event has occurred, specifying (II) specify the material terms and conditions of such Superior Proposal, or the material facts and circumstances (based on information reasonably available) related to such Intervening Event, (III) in the case of a Superior Proposal, identify the Person making such Superior Proposal, to the extent not previously identified and (IV) in the case of a Superior Proposal, enclose the most recent draft of any agreements intended to be entered into with the Person making or providing such Superior Proposal (including or any Affiliate of such Person), (2) caused the identity Company and its Representatives to negotiate, to the extent Buyer so wishes to negotiate, during such four (4) Business Day period following delivery of the Person or Group making the Notice of Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples /Intervening Event in good faith (to the extent Peoples desires to so negotiate) to make such adjustments with Buyer concerning any revisions to the terms and conditions of this Agreement so that Buyer proposes in response to such Superior Proposal ceases to constitute or Intervening Event and (3) after complying with clauses (1) and (2) of this Section 7.4(c), determined that, in the case of a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during , and in the Notice Period case of an Intervening Event, such Intervening Event continues to materially adversely affect the advisability of this Agreement from a financial point of view, in each case after giving due consideration to any revisions are changes proposed to be made to the Superior Proposal, Limestone shall deliver this Agreement by Buyer in writing. Any material modification to any Acquisition Proposal will be deemed to be a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements occurrence for purposes of this Section 6.06(d7.4(c) with respect except that the advance written notice obligation set forth in this Section 7.4(c) shall be reduced to such new written noticethree Business Days.
(ec) Nothing contained in this Agreement Section 7.4 shall prevent Limestone prohibit Seller or the Board of Directors of Seller from complying with its disclosure obligations under applicable Law regarding an Acquisition Proposal, including (i) taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 and Rule 14e-2 or Item 1012(a) of Regulation M-A under the ExchangeExchange Act (provided, however, that this Section 7.4(c) shall not affect the obligations of the Seller and the Board of Directors of Seller and the rights of Buyer under Section 7.4(a) and Section 7.4(b) of this Agreement, to the extent applicable to such disclosure) or (ii) making any “stop, look and listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act; provided, however, that neither the Company nor the Board of Directors of Seller may effect a Seller Adverse Recommendation Change except in compliance with this Section 7.4.
(d) Seller shall, and shall cause its and its and the Company’s Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any such disclosure relating Person conducted heretofore with respect to any Acquisition Proposal or proposal that could reasonably be expected to lead to an Acquisition Proposal Proposal. From and after the execution of this Agreement, Seller shall promptly end all discussions and negotiations with such Person with respect to any Acquisition Proposal, or proposal or transaction that would reasonably be expected to lead to an Acquisition Proposal, and request the prompt return or destruction of all Confidential Information concerning the Company and the Business. Seller will promptly terminate all physical and electronic data access previously granted to such Persons, in each case relating to or in connection with any Acquisition Proposal, or proposal or transaction that would reasonably be expected to lead to an Acquisition Proposal. The Seller shall be deemed responsible for any action taken by its Representatives acting in their authorized capacities on behalf of the Seller or Company that would violate this Section 7.4(d) if taken by the Seller or Company
(e) From the date hereof the earlier of the Closing and the termination of this Agreement, Seller shall not terminate, amend, modify or waive any provision of any confidentiality, “standstill” or similar agreement to which Seller or the Company is a change party and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof. Notwithstanding anything to the contrary contained in Limestone Recommendation unless Limestone this Agreement, Seller shall be permitted to terminate, amend, modify, waive or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Board reaffirms Limestone Recommendation of Directors of Seller concludes in good faith, after consultation with its financial advisor and outside legal counsel, such disclosureaction is necessary in order for the directors to comply with their fiduciary duties under applicable Law of New Jersey.
(f) As used in For purposes of this Agreement:
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Wireless Telecom Group Inc), Membership Interest Purchase Agreement (R F Industries LTD)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As The Company shall pay Parent promptly as practicable (but in no event more later than 48 hoursone (1) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of business day after the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions first of such Acquisition Proposalevents shall have occurred) a fee of $3.25 million (the “Fee”), request which amount shall be payable in immediately available funds, less any amounts previously paid under Section 8.3(b) or inquiry(c), in the event:
(iiA) shall promptly provide to Peoples a written summary the Company is in breach of the material terms of such Acquisition Proposal, request Section 6.5;
(B) this Agreement is terminated by Parent or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (Purchaser pursuant to Section 6.06(b8.1(e);
(C) any person (including, without limitation, the Company or any affiliate thereof), other than Parent or any affiliate of Parent, shall have become the beneficial owner of more than thirty-five percent (35%) of the then-outstanding Shares, and this Agreement shall have been terminated pursuant to any other Person Section 8.1(b) or Group in connection with any (d);
(D) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(g) and (x) a Company Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein proposed to the contrary, Company or its shareholders at any time or prior to the Limestone Meeting, Limestone may accept time the Company Shareholder Approval is sought to be obtained; or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) any third party (other than Parent or an affiliate thereof) shall have publicly announced an intention to make a Company Acquisition Proposal with respect to the Limestone Company at or prior to the time the Company Shareholder Approval is sought to be obtained, and either: (A) such proposed Company Acquisition Proposal has not been absolutely and unconditionally withdrawn or abandoned by such third party (unless the Company Board has determined publicly announces that it unconditionally rejects the Company Acquisition Proposal within ten (10) days after the announcement thereof by the third party); or (B) notwithstanding the withdrawal of such Company Acquisition Proposal as provided in good faiththe foregoing clause (A), after consultation an agreement for such Company Acquisition Proposal (or substantially similar transaction with outside legal counselthe same party or one or more of its affiliates) is entered into, that or such Company Acquisition Proposal (or substantially similar transaction with the failure same party or one or more of its affiliates) is consummated, within twelve (12) months of the date the Company Shareholder Approval is sought to take such action would cause it to violate its fiduciary duties under applicable lawbe obtained as provided above; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:or
(iE) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed is terminated pursuant to or proposed by ▇▇▇▇▇▇▇;Section 8.1(j).
(ii) Limestone Parent shall pay the Company promptly (but in no event later than one (1) business day after the first of such events shall have provided prior written notice to Peoples at least five business days in advance (occurred) the “Notice Period”) of taking such actionFee, which notice amount shall advise Peoples that be payable in immediately available funds, less any amounts previously paid under Section 8.3(b) or (c), in the Limestone Board has received a Superior Proposal, specifying event:
(A) Parent is in breach of Section 6.6;
(B) this Agreement is terminated by the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior ProposalCompany pursuant to Section 8.1(f);
(iiiC) during any person (including, without limitation, Parent or any affiliate thereof), other than the Notice PeriodCompany or any affiliate of the Company, Limestone shallshall have become the beneficial owner of more than thirty-five percent (35%) of the then-outstanding shares of Parent Stock, and this Agreement shall cause have been terminated pursuant to Section 8.1(b) or (c);
(D) this Agreement is terminated by Parent or the Company pursuant to Section 8.1(h), and (x) a Parent Acquisition Proposal has been proposed to Parent or its financial advisors and outside counsel to, negotiate with Peoples in good faith (stockholders at or prior to the extent Peoples desires time Parent Stockholder Approval is sought to so negotiatebe obtained; or (y) any third party (other than Parent or an affiliate thereof) shall have publicly announced an intention to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Parent Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to Parent at or prior to the time Parent Stockholder Approval is sought to be obtained, and either: (A) such new written notice.proposed Parent Acquisition Proposal has not been absolutely and unconditionally withdrawn or abandoned by such third party (unless Parent Board publicly announces that it unconditionally rejects the Parent Acquisition Proposal within ten (10) days after the announcement thereof by the third party); or (B) notwithstanding the withdrawal of such Parent Acquisition Proposal as provided in the foregoing clause (A), an agreement for such Parent Acquisition Proposal (or substantially similar transaction with the same party or one or more of its affiliates) is entered into, or such Parent Acquisition Proposal (or substantially similar transaction with the same party or one or more of its affiliates) is consummated, within twelve (12) months of the date Parent Stockholder Approval is sought to be obtained as provided above; or
(eE) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating is terminated pursuant to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosureSection 8.1(k).
(f) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Starcraft Corp /In/), Merger Agreement (Starcraft Corp /In/)
Acquisition Proposal. (a) From The Company agrees that it will, pursuant to a customary confidentiality agreement, promptly (and, in any event, within forty-eight (48) hours) notify the date of this Agreement through the first Investors in writing if any formal proposals or offers with respect to occur of the Effective Time an Acquisition Proposal are received by it or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the directors, officers, directors, employees, advisors investment bankers, attorneys, accountants and other agents of Limestone advisors or representatives (collectively, “Representatives”) and its Subsidiaries not to, directly the Company intends to initiate or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request including, in connection with such notice, the identity of the Person making the offer or inquirythe proposal or seeking such information or discussions or negotiations, (ii) shall promptly provide to Peoples a written summary of the material terms and conditions of such Acquisition Proposalany proposals or offers that are not made in writing and copies of any requests, request proposals or inquiry offers, including proposed agreements, of proposals or offers that are made in writing. The Company shall keep the identity Investors reasonably informed, on a prompt basis (and, in any event, within 48 hours), of the Person status and terms of any proposals or Group making the Acquisition Proposal, offers (including any amendments thereto) and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basisor negotiations. Limestone The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement with any Person subsequent to the date hereof which prohibits the Company from providing such information to the Investors.
(b) The Company shall simultaneously provide to Peoples not enter into any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection agreement with a third party providing for any Acquisition Proposal which has and shall not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contraryauthorize, at adopt, approve, recommend or declare advisable any time prior to the Limestone Meeting, Limestone may accept Acquisition Proposal or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied agreement with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
respect thereto (i) Limestone shall have received without providing the Investors with the right and opportunity to make an unsolicited bona fide written alternative proposal to the Acquisition Proposal (an “Investor Proposal”) in a period of at least fifteen (15) Business Days (the “Response Period”) from the date on which the Investors received the written notice from the Company in accordance with Section 6.6(a) above and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counselii) that such Acquisition if an Investor Proposal is a Superior Matching Proposal, after taking into account . Each successive amendment to any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone Acquisition Proposal shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such new Acquisition Proposal continues to constitute a Superior Proposal. If during for the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements purposes of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 6.6 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal Investors shall be deemed afforded a change new Response Period in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in respect of each such disclosureAcquisition Proposal.
(f) As used in this Agreement:
Appears in 2 contracts
Sources: Investor's Rights Agreement (Apax Europe VI-1 LP), Investor's Rights Agreement (SouFun Holdings LTD)
Acquisition Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement (a) From including the provisions of this Section 6.2), at any time after the date of this Agreement through the first and prior to occur receipt of the Effective Time Seller Shareholder Vote, the Seller Board may effect a Seller Board Recommendation Change or the termination of terminate this Agreement in order to enter into an Alternative Acquisition Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of this Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, 6.2 if (and only if, ): (i) the Limestone Seller Board determines in good faith, shall have determined (A) after consultation with LimestoneSeller’s outside legal counsel and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (yB) the Limestone Board has determined in good faith, after consultation with Seller’s outside legal counsel, that the failure to take make such action Seller Board Recommendation Change would cause it reasonably be expected to violate its be inconsistent with the Seller Board’s fiduciary duties obligations under applicable lawLaw; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have Seller has provided at least four (4) Business Days prior written notice to Peoples at least five business days Purchaser that it intends to effect a Seller Board Recommendation Change, including a description in advance reasonable detail of the reasons for such recommendation change, and written copies of any relevant proposed transactions agreements (the “Notice Period”and related ancillary agreements, including any financing commitments) of taking such action, which notice shall advise Peoples that the Limestone Board has received with any party making a Superior Proposal, specifying the material terms and conditions of such potential Superior Proposal (including the identity of the Person or Group making the such Superior Proposal) (a “Recommendation Change Notice”) (it being understood that the Recommendation Change Notice shall not constitute a Seller Board Recommendation Change for purposes of this Agreement);
; (iii) during the Notice Period, Limestone Seller shall, and shall cause its financial advisors and outside counsel Representatives to, during such four (4) Business Day period, negotiate with Peoples Purchaser in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to in the terms and conditions of this Agreement so that such Superior the Acquisition Proposal ceases to constitute a Superior Proposal, if Purchaser, in its discretion, proposes to make such adjustments; and
(iv) the Limestone Board shall have concluded Seller has complied in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply all material respects with the requirements of this Section 6.06(d6.2 in connection with such Superior Proposal; and (v) with respect if Purchaser shall have delivered to such new Seller a written notice.
(e) Nothing contained in offer to alter the terms or conditions of this Agreement during the four (4) Business Day period referred to in clause (ii) above, the Seller Board shall prevent Limestone from complying have determined in good faith, after considering the terms of such offer by Purchaser, (A) after consultation with Rule 14d-9 Seller’s outside legal counsel and Rule 14e-2 under the Exchange; provided, howeverfinancial advisors, that the Acquisition Proposal still constitutes a Superior Proposal and (B) after consultation with Seller’s outside legal counsel, that a Seller Board Recommendation Change would still be required for the Seller Board to be consistent with its fiduciary obligations under applicable Law. In the event of any material amendment to any Superior Proposal (including any revision in the amount, form or mix of consideration Seller’s shareholders or Seller would receive as a result of such potential Superior Proposal), Seller shall be required to provide Purchaser with written notice of such material amendment and there shall be a new three (3) Business Day period following such notification during which Seller shall comply again with the requirements of this Section 6.2(c), and the Seller Board shall not make a Seller Board Recommendation Change prior to the end of any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosureperiod as so extended.
(f) As used in this Agreement:
Appears in 2 contracts
Sources: Securities Purchase Agreement (Communications Systems Inc), Securities Purchase Agreement (Lantronix Inc)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, and nor shall cause it authorize or permit any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company Subsidiary to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative (collectively, "Representatives") of, nor shall it authorize and it shall use commercially reasonable efforts not to permit any employee of, the Company or any Company Subsidiary to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) initiate or induce any inquiry, proposal or offer with respect to, or encourage the making or completion submission of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition ProposalProposal (as defined below), (ii) enter into, continue into any agreement with respect to any Acquisition Proposal or otherwise (iii) participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 6.4 or elsewhere in connection this Agreement shall ----------- prohibit the Company, before the Expiration Date or adoption of this Agreement by the Company Stockholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any person in response to an Acquisition Proposal made, submitted, or announced by such person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) such Acquisition Proposal will, in the good faith judgment of the Company Board, lead to a Superior Proposal, (iii2) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any such Acquisition Proposal is not attributable to a Breach by the Company of this Section 6.4(a) or any agreement related thereto, Section 6.4(b); (v3) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Company -------------- -------------- Board determines concludes in good faith, after consultation with Limestone’s its outside legal and financial advisorscounsel, that (i) such Acquisition Proposal constitutes or it is reasonably capable of becoming a Superior Proposal, (ii) likely that the failure of the Limestone Board to take such action would cause the Limestone Board to violate constitute a Breach of its fiduciary duties to the shareholders of Limestone Company Stockholders under applicable Law; provided(4) prior to furnishing any such information to, that Limestone receives from or entering into discussions or negotiations with, such Person or Group an executed confidentiality agreement containing terms no less favorable to Person, the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing Company gives Parent written notice of the receipt identity of any Acquisition Proposalsuch Person, request or inquiry and the terms and conditions of such Acquisition Proposal and the Company's intention to furnish information to, or enter into discussions or negotiations with, such Person; (5) the Company receives from such Person an executed confidentiality agreement, which shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement, and which shall have terms which (i) are no less favorable in the aggregate to the Company than those set forth in the Confidentiality Agreement and (ii) standstill provisions which are no less favorable to the Company than those set forth in the Confidentiality Agreement; and (6) contemporaneously with furnishing any such information to such Person, the Company furnishes such information to Parent (to the extent that such information has not been previously furnished by the Company to Parent). The Company promptly shall advise Parent of any inquiry with respect to or which could lead to an Acquisition Proposal and shall promptly inform Parent of any material change in any such Acquisition Proposal or inquiry. Subject to the foregoing provisions of this Section 6.4, the Company shall, and shall cause its ----------- Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent and Buyer regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, request and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 6.4. -----------
(b) Neither the Company Board nor any committee thereof shall (i) withdraw or inquirymodify, or propose to withdraw or modify, in a manner adverse to Parent or Buyer, the approval or recommendation by the Company Board or any such committee of this Agreement, the Offer or the Merger, (ii) shall promptly provide approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to Peoples a written summary of the material terms of such any Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developmentsapprove or recommend, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide or propose to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person approve or Group in connection with recommend, any Acquisition Proposal which has not previously been provided to Peoples.
(d) Proposal. Notwithstanding anything herein to the contraryany provision of this Agreement, at any time if, prior to the Limestone Meetingacceptance for payment of Shares pursuant to the Offer, Limestone may accept or approve the Company receives a Superior Proposal thereby withdrawing its recommendation of and the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Company Board has determined determines in good faith, after consultation with outside legal counsel, that it is reasonably likely that the failure to take such action do so would cause it to violate constitute a Breach of its fiduciary duties under to the Company Stockholders imposed by applicable law; Law, the Company Board may withdraw its approval or recommendation of the Offer, the Merger and this Agreement and, in connection therewith, approve or recommend such Superior Proposal, provided, that the Limestone Board may not effect prior to withdrawing its recommendation or entering into an agreement with respect to or recommending a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Company Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counselA) that give Parent three Business Days notice of such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification (B) subsequent to such three days notice, terminate this Agreement agreed pursuant to or proposed by ▇▇▇▇▇▇▇;Section 8.1(c) hereof and (C) pay to Parent the Termination Fee provided for in Section 8.3. -----------
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(ec) Nothing contained in this Section 6.4 or elsewhere in this ----------- Agreement shall prevent Limestone prohibit the Company from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; providedExchange Act, howeverfrom taking and disclosing to its Stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company Stockholders if, that any such disclosure relating in the good faith judgment of the Company Board, after consultation with outside legal counsel, the failure so to an Acquisition Proposal shall be deemed disclose would constitute a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosureBreach of its fiduciary duties or a violation of applicable Law.
(fd) As used in For purposes of this Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Emachines Inc /De/), Agreement and Plan of Merger (Hui Lap Shun)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney, accountant or other advisor or representative of, the Company (collectively, the “Representatives”) to, and it shall cause use commercially reasonable efforts not to permit any employee of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company to, directly or indirectly indirectly, (ia) solicit, initiate, encourage, facilitate (including by way initiate or encourage the submission of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, Proposal or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (iib) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group person any confidential or nonpublic information with respect to, or agree to or in connection withendorse, an Acquisition Proposal, (iii) or take any other action to facilitate any Acquisition Proposal or any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal. Immediately after the execution and delivery of this Agreement, the Company will cease and terminate any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal provided, that notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.4 or any other provision hereof shall prohibit the Company or the Company Board from taking and disclosing to the Company Stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the foregoing, the Company may furnish information concerning its businesses, properties or assets to any Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group concerning a Superior Proposal (as defined below), provided (i) that such Person or group shall have entered into a confidentiality agreement (which shall be no less restrictive than the confidentiality agreement executed by Parent in connection with this Agreement and the transactions contemplated hereby) and (ii) that:
(1) such Person or group has submitted an Acquisition Proposal that the Company Board has determined in good faith is or would reasonably be expected to result in a Superior Proposal;
(2) in the good faith opinion of the Company Board, after consulting with independent legal counsel to the Company, such action is required to discharge the Company Board’s fiduciary duties to the Company Stockholders under applicable Law; and
(3) the Company has notified Parent in writing of its intention to engage in such discussions or negotiations or to provide such confidential information not less than 24 hours prior to so doing. Except after receipt by the Company of a Superior Proposal, the Company Board shall not (a) withdraw or modify the Company Board Recommendation, or (b) propose to approve or recommend, any Acquisition Proposal, or (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (vc) enter into any agreement contemplating or otherwise relating with respect to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (viid) propose terminate any Merger Solicitation Efforts, or agree to do any of (e) postpone, adjourn or cancel the foregoing.
(b) Merger Special Meeting. Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only ifthis Agreement, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As Company shall as promptly as practicable (but and in no event more later than 48 hours) following 24 hours after the receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any an Acquisition Proposal, Limestone shall (i) advise Peoples Parent orally and in writing of the receipt by it after the date hereof of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Acquisition Proposal (including or inquiry and the identity of the Person making any such Acquisition Proposal or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, inquiry and shall cause its financial advisors and outside counsel to, negotiate furnish Parent with Peoples in good faith any nonpublic information to be furnished to such Person making an Acquisition Proposal or inquiry concurrent with furnishing such Person with such nonpublic information (to the extent Peoples desires such nonpublic information has not been previously furnished by the Company to so negotiate) to make such adjustments to Parent). The Company will keep Parent fully informed of the terms status and conditions details of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period and any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticemodification or proposed modification thereto.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Halifax Corp of Virginia), Merger Agreement (Proxicom, Inc.)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of hereof until the Effective Time or the termination of this Agreementhereof, except as provided in Section 6.06(b), Limestone shall Checkers and Rally's and their respective Subsidiaries will not, and shall will not authorize, permit or cause any of its Subsidiaries and the their respective officers, directors, employees, advisors and employees or other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone (i) take any action to abandonsolicit, terminate initiate or fail encourage any Acquisition Proposal (as hereinafter defined), (ii) waive any provision of any standstill or similar agreements entered into by Rally's or Checkers or any of them with respect to consummate the transactions contemplated hereby Rally's or breach its obligations hereunderCheckers, (iii) engage in negotiations regarding or disclose any nonpublic information relating to any other party, respectively, or (viiiv) propose afford access to their respective properties, books or agree records to do any person that may be considering making, or has made, an Acquisition Proposal. Nothing contained in this Section 6.6 shall prohibit Rally's or Checkers and their respective Boards of Directors from (i) taking and disclosing a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated by the foregoing.
Commission under the Exchange Act, or (bii) Notwithstanding anything to the contrary in Section 6.06(a)furnishing information to, if Limestone or entering into negotiations with, any of its Representatives receives person or entity that makes an unsolicited bona fide Acquisition Proposal that did not result from proposal to acquire such party pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii)other similar transaction, if, and only ifto the extent that, the Limestone (A) such Board of Directors determines in the good faith, faith exercise of its informed business judgment and after consultation with Limestone’s outside legal receiving the advice and financial advisors, recommendation of its special committee of the Board of Directors that (i) such the Acquisition Proposal constitutes is or is reasonably capable of becoming could be more advantageous to their respective stockholders than the transactions contemplated by this Agreement (a "Superior Proposal"), (iiB) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the failure other parties hereto to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of the Limestone Board Directors to take such action would cause the Limestone Board to violate comply with its fiduciary duties to its stockholders imposed by law) such party keeps the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised other parties hereto informed of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticediscussions.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Checkers Drive in Restaurants Inc /De)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone EFBI shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone EFBI and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone EFBI to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone EFBI or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone EFBI and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone EFBI Board determines in good faith, after consultation with LimestoneEFBI’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone EFBI Board to take such action would could reasonably be expected to cause the Limestone EFBI Board to violate its fiduciary duties to the shareholders of Limestone EFBI under applicable Law; provided, that Limestone EFBI receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone EFBI shall (i) advise Peoples LCNB in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples LCNB a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples LCNB promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples LCNB with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone EFBI agrees that it shall simultaneously provide to Peoples LCNB any information concerning Limestone EFBI that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to PeoplesLCNB.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone EFBI Meeting, Limestone EFBI may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (xi) from and after the date hereof, Limestone EFBI has complied with Sections 6.02 and 6.06, and (yii) the Limestone EFBI Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone EFBI Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone EFBI shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone EFBI Board shall have concluded in good faith (after consultation with LimestoneEFBI’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇LCNB;
(ii) Limestone EFBI shall have provided prior written notice to Peoples LCNB at least five (5) business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples LCNB that the Limestone EFBI Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone EFBI shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples LCNB in good faith (to the extent Peoples LCNB desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone EFBI Board shall have concluded in good faith (after consultation with LimestoneEFBI’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by PeoplesLCNB, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone EFBI shall deliver a new written notice to Peoples LCNB giving rise to a new five (5) business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (LCNB Corp)
Acquisition Proposal. (a) From GNTY and the date of this Agreement through the first Bank will immediately cease and cause to occur of the Effective Time be terminated any existing activities, discussions or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. GNTY agrees that neither it nor any of its Subsidiaries will, and the GNTY will direct and use its commercially reasonable efforts to cause its and its Subsidiaries’ directors, officers, directors, employees, advisors agents and other agents representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of Limestone and its Subsidiaries Subsidiaries) not toto initiate, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) encourage or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected offer (including, without limitation, any proposal or offer to lead shareholders of GNTY) with respect to an Acquisition Event (any such proposal or offer, an “Acquisition Proposal”) or 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, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating facilitate any effort or attempt to any Acquisition Transaction make or implement an Acquisition Proposal; except that, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives event GNTY receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach and the board of Section 6.06(a)directors of GNTY determines prior to approval of this Agreement and the Merger by GNTY’s shareholders at the GNTY Meeting, Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, faith and after consultation with Limestone’s outside independent legal and financial advisorscounsel, that (ia) such Acquisition Proposal constitutes or is reasonably capable of becoming expected to result in a Superior Proposal, and (iib) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties applicable to the shareholders of Limestone under applicable Law; providedit require it to engage in negotiations with, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic provide confidential information or inquiry that would reasonably be expected to lead to data to, or have any Acquisition Proposal, Limestone shall (i) advise Peoples discussions with a Person in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of connection with such Acquisition Proposal, request GNTY may do so to the extent the board of directors of GNTY determines it is required by its fiduciary duties. In such event, prior to providing any confidential information or data to any such Person, GNTY and such Person shall have executed a confidentiality agreement on terms at least as favorable to GNTY as those contained in the Confidentiality Agreement. GNTY will further notify GBCI in writing promptly (and in any event within two Business Days) if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with GNTY, or if any such inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposalproposal or request is thereafter materially modified or amended, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying GBCI the material terms and conditions of any such Superior Proposal (including proposal or inquiry in connection with each required notice, together with a copy of any written proposals received. GNTY will take the identity of necessary steps to inform the Person appropriate individuals or Group making entities referred to in the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements second sentence of this Section 6.06(d) with respect 4.1.7 of the obligations to such new written notice.
(e) Nothing contained be undertaken in this Agreement shall prevent Limestone from complying with Rule 14d-9 Section 4.1.7 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in responsible for any breach or violation of this Section 4.1.7 by such disclosurePersons.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From Until the date earlier of this Agreement through (x) the first to occur of the Effective Time Closing or (y) the termination of this AgreementAgreement pursuant to Section 8.1 hereof, except as provided in Section 6.06(b), Limestone LivingSocial shall not, and shall cause not authorize or permit any of its Subsidiaries and the Subsidiaries, or any of its or its Subsidiaries’ respective officers, directors, consultants, advisors, employees, advisors and other agents of Limestone and its Subsidiaries not or representatives (each, an “LS Representative”) to, directly or indirectly indirectly, (i) solicit, initiate, encourage, facilitate (including by way initiate or knowingly encourage the submission of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, ; or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any negotiations or any material discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to, or agree to or in connection withendorse, an Acquisition Proposal, (iii) or knowingly take any other action to facilitate any Acquisition Proposal or any inquiries or the making of any proposal that constitutes constitutes, or may could reasonably be expected to lead to an to, any Acquisition Proposal. Immediately after the execution and delivery of this Agreement, LivingSocial will (ivA) approvecease and terminate any existing activities, endorse discussions or recommend, or propose negotiations with any Person(s) conducted heretofore with respect to approve, endorse or recommend any possible Acquisition Proposal and (B) instruct the LS Representatives to cease and terminate any existing activities, discussions or negotiations with any agreement related thereto, (vPerson(s) enter into any agreement contemplating or otherwise relating conducted heretofore with respect to any Acquisition Transaction or possible Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything In the event that LivingSocial or any LS Representative shall receive, prior 52 to the contrary Closing or the termination of this Agreement in accordance with Section 8.1, any Acquisition Proposal, or any request for disclosure of information or access of the type referenced in Section 6.06(a)4.7(a) above, if Limestone LivingSocial shall promptly (and in any event within 48 hours) notify Parent thereof, which notice shall include the identity of the party making any such inquiry, offer, proposal, indication of interest or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), ifrequest, and only ifthe specific terms of such inquiry, offer, proposal, indication or request, as the Limestone Board determines in good faith, after consultation with Limestone’s outside legal case may be (including a complete and financial advisors, that (i) accurate copy of such Acquisition Proposal constitutes or is reasonably capable and copies of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives any other written material and electronic communications received from such Person or Group an executed confidentiality agreement containing terms no less favorable third party related to the disclosing party than the confidentiality terms of this Agreementany such Acquisition Proposal), and such other information related thereto as Parent may reasonably request.
(c) As promptly The Parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 4.7 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as practicable (but in no event more than 48 hours) following receipt a remedy and without the necessity of posting any Acquisition Proposal bond or any request for nonpublic information or inquiry that would reasonably be expected other security, to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing prevent breaches of the receipt provisions of any Acquisition Proposal, request or inquiry this Section 4.7 and to enforce specifically the terms and conditions of such Acquisition Proposalprovisions hereof in any court having jurisdiction, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) this being in addition to any other Person remedy to which Parent may be entitled at law or Group in connection with any Acquisition Proposal which has not previously been provided to Peoplesequity.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. From the date hereof until the earlier of (a) From the date of this Agreement through the first to occur of the Effective Time or Closing, (b) the termination of this AgreementAgreement pursuant to Section 9.2 hereof or (c) the filing of a Chapter 11 Case (in which event the provisions of Section 5.11 shall govern), and except as provided in expressly permitted by the following provisions of this Section 6.06(b)5.10, Limestone shall Seller will not, and shall cause nor will it permit any of its Subsidiaries and the officersto, directorsnor will it authorize or permit any officer, employeesdirector or employee of or any investment banker, advisors and attorney, accountant or other agents advisor or representative of, Seller or any of Limestone and its Subsidiaries not to, directly or indirectly indirectly, (i) solicit, initiate, encourage, facilitate (including by way initiate or encourage the submission of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, Proposal or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group person any confidential or nonpublic information with respect to any Acquisition Proposal; provided, however, that nothing contained in this Section 5.10 shall prohibit the Board of Directors of Seller from furnishing information to, or in connection entering into discussions or negotiations with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal person that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives makes an unsolicited bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, to the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, extent that (iA) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, or (iiB) such Acquisition Proposal constitutes a Recapitalization Transaction and (C) prior to taking such action, Seller (x) provides reasonable notice to Buyer to the failure of the Limestone Board to take effect that it is taking such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone and (y) receives from such Person or Group person an executed confidentiality agreement containing terms no less favorable in reasonably customary form. Prior to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but providing any information to or entering into discussions or negotiations with any person in no event more than 48 hours) following receipt connection with an Acquisition Proposal by such person, Seller shall notify Buyer of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal(including, Limestone shall (i) advise Peoples in writing without limitation, the material terms and conditions thereof and the identity of the person making it) as promptly as practicable after its receipt thereof, and shall provide Buyer with a copy of any written Acquisition ProposalProposal or amendments or supplements thereto, request and shall thereafter inform Buyer on a prompt basis of the status of any discussions or inquiry negotiations with such a third party, and any material changes to the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) and shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with give Buyer a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant delivered to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal such person which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to reviewed by Buyer. Following the contrarycommencement of a Chapter 11 Case, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation solicitation and acceptance of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal competing offers (including the identity of the Person or Group making the Superior Proposal);
(iiiAcquisition Proposals) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to will be governed by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice5.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Stock Purchase Agreement (Penncorp Financial Group Inc /De/)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, and nor shall cause it authorize or permit any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative (collectively, "Representatives") of, the Company or any Company Subsidiary to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) initiate or induce any inquiry, proposal or offer with respect to, or encourage the making or completion submission of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition ProposalProposal (as defined below), (ii) enter into, continue into any agreement with respect to any Acquisition Proposal or otherwise (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person or Group person any confidential or nonpublic information with respect to to, or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing in this Section 6.4 or elsewhere in this Agreement shall prohibit ----------- the Company Board from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.4; and provided, further, that nothing in this Section 6.4 or ----------- elsewhere in this Agreement shall prohibit the Company, before the expiration of the Offer or adoption of this Agreement by the Company Shareholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any person in response to an Acquisition Proposal made, submitted, or announced by such person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a termination of this Agreement pursuant to Section 9.1(c), entering into an agreement accepting or -------------- providing for, a Superior Proposal, and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (iv1) approvesuch Acquisition Proposal is not attributable to a Breach by the Company of this Section 6.4(a) -------------- or Section 6.4(b); (2) the Board of Directors of the Company concludes in good -------------- faith, endorse after consultation with its outside legal counsel, that it is reasonably
(b) Neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Buyer, the approval or recommendation by the Company Board or any such committee of this Agreement, the Offer or the Merger, (ii) approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to any Acquisition Proposal, or (iii) approve or recommend, or propose to approveapprove or recommend, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of . Notwithstanding the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meetingacceptance for payment of Shares pursuant to the Offer, Limestone may accept or approve the Company receives a Superior Proposal thereby withdrawing its recommendation and a majority of the Agreement (“Acceptance directors of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined Company determine in good faith, after consultation with outside legal counsel, that it is reasonably likely that the failure to take do so would constitute a Breach of their fiduciary duties to Company Shareholders imposed by applicable Law, the Company Board may withdraw its approval or recommendation of the Offer, the Merger and this Agreement and, in connection therewith, approve or recommend such action Superior Proposal, provided, that the Company Board shall give Parent two Business Days notice prior to withdrawing its recommendation or entering into an agreement with respect to or recommending a Superior Proposal; and pay to Parent the Termination Fee Provided for in Section 9.3(a) pursuant to Section 9.3(d). -------------- --------------
(c) The Company promptly shall advise Parent of any Acquisition Proposal or any inquiry with respect to or that could lead to any Acquisition Proposal, the identity of the person or group making any such Acquisition Proposal or inquiry and the material terms of any such Acquisition Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status, including any change to the details, of any such Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence with other written material sent or provided (unless previously provided) to the Company from any third party in connection with any Acquisition Proposal or sent or provided by the Company to any third party in connection with any Acquisition Proposal.
(d) Nothing contained in this Section (d) shall prohibit the Company ------------ from taking and disclosing to its Shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's Shareholders if, in the good faith judgment of the Company Board, after receiving advice from outside legal counsel, the failure so to disclose would cause it to violate constitute a Breach of its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in For purposes of this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From Except as set forth on Schedule 7.1 of the date of dcicv/Cable Due Diligence Schedules, unless this Agreement through the first to occur is terminated by its terms, neither LABN/dcicv/Cable, nor its Subsidiaries nor any of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall nottheir respective officers and directors shall, and LABN/dcicv/Cable shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries Subsidiaries) not to, directly or indirectly (i) solicit, initiateindirectly, encourage, facilitate solicit, participate in or initiate (including by way of providing furnishing or disclosing non- public information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) knowingly take any other action designed to facilitate any inquiries discussions, inquiries, negotiations or the making of any proposal proposals with respect to or concerning any merger, consolidation, share acquisition, asset purchase, share exchange, business combination, tender offer, exchange offer or similar transaction involving the acquisition of twenty percent (20%) or more of the assets of Cable, taken as a whole, or any purchase or sale of, or tender or exchange offer for the equity securities of Cable that, if consummated, would result in any Person (or the stockholders of that constitutes Person) beneficially owning securities representing twenty percent (20%) or may more of the total voting power of Cable or any of its Subsidiaries (any of those proposed transactions being a "Cable ACQUISITION PROPOSAL"). Nothing contained in this SECTION 7.1 or any other provision of this Agreement shall prohibit LABN/dcicv/Cable or its board from: (i) taking and disclosing to LABN/dcicv/Cable stockholders a position with respect to a tender or exchange offer by a third party not solicited, encouraged, discussed, continued or failed to be ceased or terminated in contravention of this Agreement or (ii) making such disclosure to LABN/dcicv/Cable stockholders as, in the good faith judgment of its board, pursuant to advice from outside counsel, is reasonably be expected to lead be required under applicable law, provided that LABN may not, except as otherwise permitted under this Agreement, withdraw or modify its position with respect to an the AP A or approve or recommend any Cable Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating with respect to any Acquisition Transaction or Cable Acquisition Proposal. Upon execution of this Agreement, (vi) enter into LABN/dcicv/Cable immediately will cease any agreement existing activities, discussions or agreement in principle requiring, directly or indirectly, Limestone negotiations with any parties conducted heretofore with respect to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.. Notwithstanding the foregoing, prior to the Effective Time, Cable may furnish information (including non-public information) to any Person pursuant to appropriate confidentiality agreements (which shall permit the disclosure contemplated by this SECTION 6.1), which agreement shall contain terms no less restrictive than the terms of the confidentiality agreement by and between LABN/dcicv/Cable and USAB dated April 22, 2002, and may negotiate and participate in discussions and negotiations with such Person concerning a Cable Acquisition Proposal if:
(ba) Notwithstanding anything to the contrary in Section 6.06(a)Such entity or group has submitted, if Limestone or any of its Representatives receives on an unsolicited basis, a bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take written proposal to LABN/dcicv/Cable' board relating to any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board such transaction which LABNI dcicv/Cable' board determines in good faith, after consultation consistent with Limestone’s outside legal and financial advisorsadvice from an independent investment banker, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, being funded on the disclosed terms and (ii) is reasonably likely to be consummated in accordance with its terms; and (b) in the failure opinion of the Limestone Board to take LABN/dcicv/Cable' board, such action would cause the Limestone Board is reasonably expected to violate its be required in order to discharge LABN/dcicv/Cable' board's fiduciary duties to the shareholders of Limestone LABN/dcicv/Cable stockholders under applicable Law; providedlaw, determined only after LABN/dcicv/Cable' board concludes in good faith that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Cable Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably could be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s proposal that is superior from a financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) standpoint with respect to such new written noticethe stockholders of LABN/dcicv/Cable to the AP A (a "SUPERIOR PROPOSAL").
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Asset Purchase Agreement (Las Americas Broadband Inc)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Seller shall not, and nor shall cause it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of its Subsidiaries and the officersSeller (collectively, directors, employees, advisors and other agents of Limestone and its Subsidiaries not "Representatives") to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit any employee or agent of Seller to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way solicit or initiate the submission of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue into any agreement with respect to any Acquisition Proposal or otherwise (iii) participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to to, any Acquisition Proposal; provided, however, that nothing in this Section 6(l) or elsewhere in connection this Agreement shall prohibit Seller, before the Closing Date, from furnishing information regarding Seller to, or entering into negotiations or discussions with, any Person in response to an Acquisition Proposal made, submitted, or announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a breach of this Agreement if and to the extent that each of the following conditions is satisfied: (1) Seller's board of directors concludes in good faith that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal, (iii2) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any such Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating is not attributable to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach by Seller of this Section 6.06(a6(l), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines ; (3) Seller's board of directors concludes in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that it is reasonably likely that the failure to take such action would cause it to violate constitute a breach of its fiduciary duties to Seller's stockholders under applicable law; provided, that (4) Seller promptly gives Buyer written notice of the Limestone Board may not effect a Acceptance existence of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) all of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Acquisition Proposal and Seller's intention to furnish information to, or enter into discussions or negotiations with, such Person, and Seller promptly gives Buyer written notice of any amendment in the material terms and conditions of such Acquisition Proposal (including which notice shall include materially amended material terms and conditions) throughout the identity pendency of Seller's discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with Seller that is customary for such transactions and (6) Seller promptly furnishes to Buyer any information provided to such Person (to the Person or Group making extent that such information has not been previously furnished by Seller to Buyer). Subject to the Superior Proposalforegoing provisions of this Section 6(l);
(iii) during the Notice Period, Limestone Seller shall, and shall cause its financial advisors and outside counsel Representatives to, negotiate cease immediately all existing activities, discussions and negotiations with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms Persons other than Parent and conditions of this Agreement so Buyer regarding any proposal that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) thatconstitutes, after considering the results of such negotiations and giving effect to any proposalsor which Seller reasonably believes would lead to, amendments or modifications offered or agreed to by Peoples, if any, that such an Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice and will take the necessary steps to Peoples giving rise inform the Persons referred to a new five business day Notice Period and shall again comply with above of the requirements of obligations undertaken in this Section 6.06(d) with respect to such new written notice6(l).
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone PWOD shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone PWOD and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone PWOD to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone PWOD or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone PWOD and its Representatives may may, and permit its Subsidiaries and its Subsidiaries’ Representatives to, take any action described in Section 6.06(a)(ii)) and participate in negotiations or discussions regarding the foregoing, if, and only if, the Limestone PWOD Board determines in good faith, after consultation with LimestonePWOD’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, and (ii) the failure of the Limestone PWOD Board to take such action would cause the Limestone PWOD Board to violate its fiduciary duties to the shareholders of Limestone PWOD under applicable Law; provided, that Limestone PWOD receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone PWOD shall (i) advise Peoples NWBI in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples NWBI a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples NWBI promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples NWBI with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone PWOD agrees that it shall simultaneously provide to Peoples NWBI any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.PWOD
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone PWOD Meeting, Limestone PWOD may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (xi) from and after the date hereof, Limestone PWOD has complied with Sections 6.02 and 6.06, and (yii) the Limestone PWOD Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone PWOD Board may not effect a Acceptance of Superior Proposal unless:
: (i) Limestone PWOD shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone PWOD Board shall have concluded in good faith (after consultation with LimestonePWOD’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
NWBI; (ii) Limestone PWOD shall have provided prior written notice to Peoples NWBI at least five (5) business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples NWBI that the Limestone PWOD Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
; (iii) during the Notice Period, Limestone PWOD shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples NWBI in good faith (to the extent Peoples NWBI desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
and (iv) the Limestone PWOD Board shall have concluded in good faith (after consultation with LimestonePWOD’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by PeoplesNWBI, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone PWOD shall deliver a new written notice to Peoples NWBI giving rise to a new five (5) business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone PWOD from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone PWOD Recommendation unless Limestone PWOD Board reaffirms Limestone PWOD Recommendation in such disclosure.
(f) As used in this Agreement:: (i) “Superior Proposal” means any bona fide written Acquisition Proposal on terms which the PWOD Board determines in good faith, after consultation
Appears in 1 contract
Acquisition Proposal. (ai) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Nextera agrees that it shall not, and nor shall cause it permit Sellers to, nor shall it authorize or knowingly permit any officer, director, employee, affiliate, investment banker, attorney, accountant, agent or other advisor or representative of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not toNextera or Sellers, directly or indirectly indirectly, to (i) solicit, initiate, encourage, facilitate (including by way initiate or otherwise encourage the submission of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to to, or in connection with, an Acquisition Proposal, (iii) take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may that would reasonably be expected to lead to to, an Acquisition Proposal, (iviii) approvegrant any waiver or release under any standstill or similar agreement with respect to any class or series of Nextera or Sellers' equity securities to the extent such waiver or release would permit the other party or parties to such agreement to actually acquire such securities or approve any matter for purposes of Section 203 of the DGCL with respect to any Person (for the avoidance of doubt, endorse a waiver or recommendrelease under such agreement that solely permits a proposal or offer, including, without limitation, an Acquisition Proposal, would not violate this clause (iii)), or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (viv) enter into any agreement contemplating or otherwise relating with respect to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As Nextera shall notify Buyer promptly as practicable (but in no event more later than 48 hoursthe third Business Day) following after receipt by Nextera or Sellers of any Acquisition Proposal or any request for nonpublic information relating to Nextera or inquiry Sellers in connection with an Acquisition Proposal or for access to the properties, books or records of Nextera or Sellers or any request for a waiver or release under any standstill or similar agreement by any Person that would reasonably be expected to lead has made, or informs the Board of Directors of Nextera or Sellers that it is considering making, an Acquisition Proposal. The notice shall indicate the material terms and conditions of the proposal or request and the identity of the Person making it, and Sellers will promptly notify Buyer of any material modification of or material amendment to any Acquisition ProposalProposal (and the terms of such modification or amendment); provided, Limestone however, that, without limiting what changes may be material, any change in the form, amount, timing or other aspects of the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment.
(A) Except as permitted by Section 7.4(b), neither the Board of Directors of Nextera nor or any other committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Buyer, the Nextera Recommendation (it being understood and agreed that a communication by the Board of Directors of Nextera to Nextera Stockholders pursuant to Rule 14d-9(f) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any similar communication to the Nextera Stockholders in connection with the making or amendment of a tender offer or exchange offer by any Person, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Nextera Recommendation for purposes of this Section 7.4) and (B) unless Nextera's Board of Directors has previously withdrawn, or is concurrently therewith withdrawing, the Nextera Recommendation in accordance with this Section 7.4, Nextera's Board of Directors shall not recommend any Acquisition Proposal to the Nextera Stockholders. Nothing contained in this Section 7.4 or elsewhere in this Agreement shall (i) advise Peoples in writing prevent Nextera's Board of Directors from complying with Rule 14e-2 under the receipt of Exchange Act with respect to any Acquisition Proposal, request Proposal or inquiry and the terms and conditions of such Acquisition Proposal, request making any disclosure required by applicable law or inquiry, (ii) shall promptly provide to Peoples a written summary prohibit accurate disclosure of factual information regarding the business, financial condition or results of operations of Nextera or Sellers, or the fact that an Acquisition Proposal has been made, the identity of the party making such Acquisition Proposal or the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contraryextent such information, at any time prior facts, identity or terms are required to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties be disclosed under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Comunibanc shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone Comunibanc and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone Comunibanc to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone Comunibanc or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone Comunibanc and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Comunibanc Board determines in good faith, after consultation with LimestoneComunibanc’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Comunibanc Board to take such action would cause more likely than not be deemed a breach by the Limestone Comunibanc Board to violate of its fiduciary duties to the shareholders of Limestone Comunibanc under applicable Law; provided, that Limestone Comunibanc receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone Comunibanc shall (i) advise Peoples Civista in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples Civista a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples Civista promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples Civista with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone Comunibanc agrees that it shall simultaneously provide to Peoples Civista any information concerning Limestone Comunibanc that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to PeoplesCivista.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Comunibanc Meeting, Limestone Comunibanc may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone Comunibanc has complied with Sections 6.02 and 6.06, and (y) the Limestone Comunibanc Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate more likely than not be deemed a breach by the Comunibanc board of its fiduciary duties to the shareholders of Comunibanc under applicable law; provided, that the Limestone Comunibanc Board may not effect a an Acceptance of Superior Proposal unless:
(i) Limestone Comunibanc shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Comunibanc Board shall have concluded in good faith (after consultation with LimestoneComunibanc’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇Civista;
(ii) Limestone Comunibanc shall have provided prior written notice to Peoples Civista at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples Civista that the Limestone Comunibanc Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone Comunibanc shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples Civista in good faith (to the extent Peoples Civista desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Comunibanc Board shall have concluded in good faith (after consultation with LimestoneComunibanc’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by PeoplesCivista, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone Comunibanc shall deliver a new written notice to Peoples Civista giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From Except as set forth on Schedule 7.1 of the date of dcicv/Cable Due Diligence Schedules, unless this Agreement through the first to occur is terminated by its terms, neither LABN/dcicv/Cable, nor its Subsidiaries nor any of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall nottheir respective officers and directors shall, and LABN/dcicv/Cable shall use its reasonable best efforts to cause its and its Subsidiaries’ employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries Subsidiaries) not to, directly or indirectly (i) solicit, initiateindirectly, encourage, facilitate solicit, participate in or initiate (including by way of providing furnishing or disclosing non-public information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) knowingly take any other action designed to facilitate any inquiries discussions, inquiries, negotiations or the making of any proposal proposals with respect to or concerning any merger, consolidation, share acquisition, asset purchase, share exchange, business combination, tender offer, exchange offer or similar transaction involving the acquisition of twenty percent (20%) or more of the assets of Cable, taken as a whole, or any purchase or sale of, or tender or exchange offer for the equity securities of Cable that, if consummated, would result in any Person (or the stockholders of that constitutes Person) beneficially owning securities representing twenty percent (20%) or may more of the total voting power of Cable or any of its Subsidiaries (any of those proposed transactions being a “Cable ACQUISITION PROPOSAL”). Nothing contained in this SECTION 7.1 or any other provision of this Agreement shall prohibit LABN/dcicv/Cable or its board from: (i) taking and disclosing to LABN/dcicv/Cable stockholders a position with respect to a tender or exchange offer by a third party not solicited, encouraged, discussed, continued or failed to be ceased or terminated in contravention of this Agreement or (ii) making such disclosure to LABN/dcicv/Cable stockholders as, in the good faith judgment of its board, pursuant to advice from outside counsel, is reasonably be expected to lead be required under applicable law, provided that LABN may not, except as otherwise permitted under this Agreement, withdraw or modify its position with respect to an the APA or approve or recommend any Cable Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating with respect to any Acquisition Transaction or Cable Acquisition Proposal. Upon execution of this Agreement, (vi) enter into LABN/dcicv/Cable immediately will cease any agreement existing activities, discussions or agreement in principle requiring, directly or indirectly, Limestone negotiations with any parties conducted heretofore with respect to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.. Notwithstanding the foregoing, prior to the Effective Time, Cable may furnish information (including non-public information) to any Person pursuant to appropriate confidentiality agreements (which shall permit the disclosure contemplated by this SECTION 6.1), which agreement shall contain terms no less restrictive than the terms of the confidentiality agreement by and between LABN/dcicv/Cable and USAB dated April 22, 2002, and may negotiate and participate in discussions and negotiations with such Person concerning a Cable Acquisition Proposal if:
(ba) Notwithstanding anything to the contrary in Section 6.06(a)Such entity or group has submitted, if Limestone or any of its Representatives receives on an unsolicited basis, a bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take written proposal to LABN/dcicv/Cable’ board relating to any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board such transaction which LABN/ dcicv/Cable’ board determines in good faith, after consultation consistent with Limestone’s outside legal and financial advisorsadvice from an independent investment banker, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, being funded on the disclosed terms and (ii) the failure of the Limestone Board is reasonably likely to take such action would cause the Limestone Board to violate be consummated in accordance with its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposalterms; and
(ivb) in the Limestone Board shall have concluded opinion of LABN/dcicv/Cable’ board, such action is reasonably expected to be required in order to discharge LABN/dcicv/Cable’ board’s fiduciary duties to LABN/dcicv/Cable stockholders under applicable law, determined only after LABN/dcicv/Cable’ board concludes in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering that the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Cable Acquisition Proposal continues reasonably could be expected to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver proposal that is superior from a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) financial standpoint with respect to such new written noticethe stockholders of LABN/dcicv/Cable to the APA (a “SUPERIOR PROPOSAL”).
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (ai) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Nextera agrees that it shall not, and nor shall cause it permit Sellers to, nor shall it authorize or knowingly permit any officer, director, employee, affiliate, investment banker, attorney, accountant, agent or other advisor or representative of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not toNextera or Sellers, directly or indirectly indirectly, to (i) solicit, initiate, encourage, facilitate (including by way initiate or otherwise encourage the submission of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to to, or in connection with, an Acquisition Proposal, (iii) take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may that would reasonably be expected to lead to to, an Acquisition Proposal, (iviii) approvegrant any waiver or release under any standstill or similar agreement with respect to any class or series of Nextera or Sellers' equity securities to the extent such waiver or release would permit the other party or parties to such agreement to actually acquire such securities or approve any matter for purposes of Section 203 of the DGCL with respect to any Person (for the avoidance of doubt, endorse a waiver or recommendrelease under such agreement that solely permits a proposal or offer, including, without limitation, an Acquisition Proposal, would not violate this clause (iii)), or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (viv) enter into any agreement contemplating or otherwise relating with respect to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As Nextera shall notify Buyer promptly as practicable (but in no event more later than 48 hoursthe third Business Day) following after receipt by Nextera or Sellers of any Acquisition Proposal or any request for nonpublic information relating to Nextera or inquiry Sellers in connection with an Acquisition Proposal or for access to the properties, books or records of Nextera or Sellers or any request for a waiver or release under any standstill or similar agreement by any Person that would reasonably be expected to lead has made, or informs the Board of Directors of Nextera or Sellers that it is considering making, an Acquisition Proposal. The notice shall indicate the material terms and conditions of the proposal or request and the identity of the Person making it, and Sellers will promptly notify Buyer of any material modification of or material amendment to any Acquisition ProposalProposal (and the terms of such modification or amendment); provided, Limestone however, that, without limiting what changes may be material, any change in the form, amount, timing or other aspects of the consideration to be paid with respect to the Acquisition Proposal shall be deemed to be a material modification or a material amendment.
(A) Except as permitted by Section 7.4(b), neither the Board of Directors of Nextera nor or any other committee thereof shall amend, withdraw, modify, change, condition or qualify in any manner adverse to Buyer, the Nextera Recommendation (it being understood and agreed that a communication by the Board of Directors of Nextera to Nextera Stockholders pursuant to Rule 14d-9(f) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), or any similar communication to the Nextera Stockholders in connection with the making or amendment of a tender offer or exchange offer by any Person, shall not be deemed to constitute a withdrawal, modification, amendment, condition or qualification of the Nextera Recommendation for purposes of this Section 7.4) and (B) unless Nextera's Board of Directors has previously withdrawn, or is concurrently therewith withdrawing, the Nextera Recommendation in accordance with this Section 7.4, Nextera's Board of Directors shall not recommend any Acquisition Proposal to the Nextera Stockholders. Nothing contained in this Section 7.4 or elsewhere in this Agreement shall (i) advise Peoples in writing prevent Nextera's Board of Directors from complying with Rule 14e-2 under the receipt of Exchange Act with respect to any Acquisition Proposal, request Proposal or inquiry and the terms and conditions of such Acquisition Proposal, request making any disclosure required by applicable law or inquiry, (ii) shall promptly provide to Peoples a written summary prohibit accurate disclosure of factual information regarding the business, financial condition or results of operations of Nextera or Sellers, or the fact that an Acquisition Proposal has been made, the identity of the party making such Acquisition Proposal or the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contraryextent such information, at any time prior facts, identity or terms are required to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties be disclosed under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. Until the earlier of (a) From Closing and (b) the date date, if any, on which the board of this Agreement through directors of Purchaser determines not to give its recommendation to the first to occur shareholders of Purchaser of the Effective Time approval of all resolutions required to be passed in order for the Purchaser Shareholder Approval to be obtained or the termination to withdraw or modify such recommendation, or when Purchaser has announced its intention to make such a determination, none of this AgreementSeller, except as provided in Section 6.06(b)any Affiliate of Seller or any officer, Limestone shall notdirector or employee of, and shall cause or any investment banker, attorney, accountant or other advisor or representative of, Seller or any Affiliate of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not toSeller will, directly or indirectly (i) solicit, initiate, encourage, facilitate initiate or encourage the submission of any competing offer for the purchase of the Company or any Company Subsidiary or the purchase of all or any portion of the securities or assets (including by way merger, recapitalization, consolidation or in any other form of providing informationtransaction) of the Company or any Company Subsidiary ("Acquisition Proposal") or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue negotiate or otherwise participate in any discussions or negotiations regardingrespond to, other than decline to enter into such negotiations, or furnish to any Person or Group any confidential or nonpublic non-public information with respect to the Company or in connection with, an Acquisition Proposal, any Company Subsidiary (iii) or take any other action action) to facilitate facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to an Acquisition Proposalto, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that nothing in this Section 5.22 shall prohibit Seller, the Company or any such disclosure relating Company Subsidiary from taking any action otherwise permitted to be taken pursuant to Section 5.1(a)(viii). In the event of any inquiry about the possibility of making an Acquisition Proposal or Acquisition Proposal (or request for non-public information about the Company or any Company Subsidiary by any Person who is reasonably believed by Seller to be considering making an Acquisition Proposal), Seller shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in provide prompt written notice to Purchaser of its receipt of such disclosureinquiry, Acquisition Proposal or request; provided, that Seller shall have no obligation to disclose to Purchaser any terms or the identity of the inquiring party.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Stock Purchase Agreement (Interpublic Group of Companies Inc)
Acquisition Proposal. (a) From If at any time during the date of this Agreement through Pre-Closing Period, the first to occur of the Effective Time Company or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the officersRepresentatives receives a bona fide unsolicited written Acquisition Proposal or any proposal that would reasonably be expected to lead to an Acquisition Proposal from any Person or group of Persons which did not result from or arise out of any breach of this Section 5.3 or Section 5.4, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicitthe Company and its Representatives may contact and engage in discussions with such Person or group of Persons solely to the extent necessary to clarify the terms and conditions of such Acquisition Proposal or proposal, initiate, encourage, facilitate (including by way request that any oral Acquisition Proposal or proposal be provided in written form and inform such Person or group of providing information) or induce any inquiry, proposal or offer with respect to, or Persons of the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, terms of this Section 5.3 and (ii) enter intoif the Company Board determines in good faith, continue after consultation with its financial advisor and outside legal counsel that such Acquisition Proposal (or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to an Acquisition Proposal, ) constitutes or would reasonably be expected to lead to a Superior Proposal and that the failure to take such action described in clause (ivA) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (viiB) propose or agree to do any of below would be inconsistent with its fiduciary duties under applicable Legal Requirements, then the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone Company and its Representatives may take (A) enter into an Acceptable Confidentiality Agreement and subject to entry into such Acceptable Confidentiality Agreement furnish pursuant thereto information (including non-public information) with respect to the Company to the Person or group of Persons who has made such Acquisition Proposal and their respective Representatives and financing sources; provided, that the Company shall substantially concurrently provide to Parent any action copies of any information or data concerning the Company, or access to the Company’s properties, books and records or personnel, that is provided to any Person given such access which was not previously provided to Parent or its Representatives and (B) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Acquisition Proposal and their respective Representatives and financing sources, including soliciting the submission of a revised Acquisition Proposal. Prior to the Company first taking any of the actions described in Section 6.06(a)(ii)clauses (A) or (B) of the immediately preceding sentence with respect to an Acquisition Proposal, the Company shall provide written notice to Parent of the determination of the Company Board made pursuant to the immediately preceding sentence. During the Pre-Closing Period, the Company will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement that prohibits or purports to prohibit an Acquisition Proposal being made to the Company if, in each case, (x) the Person making the Acquisition Proposal has not been solicited in breach of this Section 5.3 and only if, (y) the Limestone Company Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its be inconsistent with the fiduciary duties of the Company Board under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticeLegal Requirements.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From AB and the date of this Agreement through the first Bank will immediately cease and cause to occur of the Effective Time be terminated any existing activities, discussions or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. AB agrees that neither it nor any of its Subsidiaries will, and the AB will direct and use its commercially reasonable efforts to cause its and its Subsidiaries’ directors, officers, directors, employees, advisors agents and other agents representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of Limestone and its Subsidiaries Subsidiaries) not toto initiate, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) encourage or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected offer (including, without limitation, any proposal or offer to lead shareholders of AB) with respect to an Acquisition Event (any such proposal or offer, an “Acquisition Proposal”) or 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, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating facilitate any effort or attempt to any Acquisition Transaction make or implement an Acquisition Proposal; except that, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives event AB receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach and the board of Section 6.06(a)directors of AB determines prior to approval of this Agreement and the Merger by AB’s shareholders at the AB Meeting, Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, faith and after consultation with Limestone’s outside independent legal and financial advisorscounsel, that (ia) such Acquisition Proposal constitutes or is reasonably capable of becoming expected to result in a Superior Proposal, and (iib) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties applicable to the shareholders of Limestone under applicable Law; providedit require it to engage in negotiations with, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic provide confidential information or inquiry that would reasonably be expected to lead to data to, or have any Acquisition Proposal, Limestone shall (i) advise Peoples discussions with a Person in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of connection with such Acquisition Proposal, request AB may do so to the extent the board of directors of AB determines it is required by its fiduciary duties. In such event, prior to providing any confidential information or data to any such Person, AB and such Person shall have executed a confidentiality agreement on terms at least as favorable to AB as those contained in the Confidentiality Agreement. AB will further notify GBCI in writing promptly (and in any event within two Business Days) if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with AB, or if any such inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposalproposal or request is thereafter materially modified or amended, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying GBCI the material terms and conditions of any such Superior proposal or inquiry in connection with each required notice, together with a copy of any written proposals received (it being understood that the name of Person making the Acquisition Proposal (including may be redacted from the identity copy of the Person written proposal provided to GBCI). AB will take the necessary steps to inform the appropriate individuals or Group making entities referred to in the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements second sentence of this Section 6.06(d) with respect 4.1.9 of the obligations to such new written notice.
(e) be undertaken in this Section 4.1.9. Nothing contained in this Agreement Section 4.1.9 shall prevent Limestone prohibit AB or the board of directors of AB from complying with AB’s obligations required under Rule 14d-9 and Rule 14e-2 14e-2(a) promulgated under the ExchangeExchange Act; provided, however, that any such disclosure relating to an Acquisition Proposal (other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed a change in Limestone Recommendation the board of directors of AB’s recommendation that AB’s shareholders approve this Agreement and the Merger unless Limestone Board the board of directors of AB reaffirms Limestone Recommendation such recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Altabancorp)
Acquisition Proposal. (a1) From If at any time following the date of this Agreement through the first and prior to occur of the Effective Time or the termination of this AgreementTime, except as provided in Section 6.06(b), Limestone shall not, and shall cause Vasogen receives any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Vasogen Board determines in good faith, after consultation with Limestone’s its financial advisors and outside legal counsel, constitutes or is likely to lead to a Superior Proposal, then Vasogen may:
(a) furnish information with respect to Vasogen to the Person making such Acquisition Proposal; and/or
(b) enter into, participate, facilitate and financial advisorsmaintain discussions or negotiations with, and otherwise cooperate with or assist, the Person making such Acquisition Proposal, provided that Vasogen shall not, and shall not allow its Representatives to, disclose any non-public information to such Person without having entered into a confidentiality agreement with such Person that contains provisions that are no less favourable in the aggregate to Vasogen and that are not individually or in the aggregate materially more favourable to such Person than those contained in the Confidentiality Agreement, and provided that such confidentiality agreement may not include any provision calling for an exclusive right to negotiate with Vasogen and may not restrict Vasogen from complying with this Section 8.2,and will promptly provide to the IPC Companies any non-public information concerning Vasogen provided to such other Person which was not previously provided to the IPC Companies.
(2) From and after the date of this Agreement, Vasogen shall promptly (and in any event within 24 hours) notify the IPC Companies at first orally and then in writing of any actual or potential Acquisition Proposal, including a copy of any confidentiality agreement entered into by Vasogen, the identity of the Person making such Acquisition Proposal and the material terms and conditions thereof, and shall, at the IPC Companies’ reasonable request, inform it as to the status of developments and negotiations with respect to such Acquisition Proposal, including any changes to the material terms or conditions of such Acquisition Proposal.
(3) The Vasogen Board shall not effect a Change of Recommendation unless (i) Vasogen has received a bona fide Acquisition Proposal from such Person, (ii) the Vasogen Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (iiiii) Vasogen has provided the IPC Companies with a copy of such Acquisition Proposal, (iv) a period (the “Matching Period”) consistent with the Response Period has lapsed from the date (the “Notice Date”) that is the later of (a) the failure date the IPC Companies received written notice of the Limestone Board Vasogen’s proposed determination to take such action would cause action, and (b) the Limestone Board to violate its fiduciary duties to date the shareholders IPC Companies received a copy of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone (v) during the Matching Period, the IPC Companies shall have the opportunity (ibut not an obligation) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and to offer to amend the terms and conditions of this Agreement such that the Acquisition Proposal would cease to be a Superior Proposal, (vi) after the Matching Period, the Vasogen Board (a) determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal, request or inquiry, (ii) shall promptly provide Proposal continues to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve constitute a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (yb) the Limestone Board has determined determines in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate be inconsistent with its fiduciary duties under applicable law; providedLaw, that and (vii) after the Limestone Matching Period, the Vasogen Board may not effect or any committee thereof effects a Acceptance Change of Superior Proposal unless:
Recommendation. Each successive material modification (i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and including any increase in the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”price) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed constitute a change new Acquisition Proposal for purposes of Section 8.2(1), provided that the Matching Period in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation respect of such new Acquisition Period shall extend only until the later of the end of the initial five (5) Business Day Matching Period and 48 hours after the Notice Date in such disclosurerespect of the new Acquisition Proposal.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Arrangement Agreement (Vasogen Inc)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur Except as set forth on SECTION 7.5 of the Effective Time or the termination Broadband Due Diligence Schedules, neither Broadband, nor its Subsidiaries nor any of this Agreement, except as provided in Section 6.06(b), Limestone shall nottheir respective officers and directors shall, and Broadband shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries Subsidiaries) not to, directly or indirectly (i) solicit, initiateindirectly, encourage, facilitate solicit, participate in or initiate (including by way of providing furnishing or disclosing non-public information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) knowingly take any other action designed to facilitate any inquiries discussions, inquiries, negotiations or the making of any proposal proposals with respect to or concerning any merger, consolidation, share acquisition, asset purchase, share exchange, business combination, tender offer, exchange offer or similar transaction involving the acquisition of twenty percent (20%) or more of the assets of Broadband, taken as a whole, or any purchase or sale of, or tender or exchange offer for the equity securities of Broadband that, if consummated, would result in any Person (or the stockholders of that constitutes Person) beneficially owning securities representing twenty percent (20%) or may more of the total voting power of Broadband or any of its Subsidiaries (any of those proposed transactions being a "BROADBAND ACQUISITION PROPOSAL"). Nothing contained in this SECTION 7.5 or any other provision of this Agreement shall prohibit Broadband or its board from: (i) taking and disclosing to Broadband's stockholders a position with respect to a tender or exchange offer by a third party not solicited, encouraged, discussed, continued or failed to be ceased or terminated in contravention of this Agreement pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (ii) making such disclosure to Broadband's stockholders as, in the good faith judgment of its board, pursuant to advice from outside counsel, is reasonably be expected to lead be required under applicable law, provided that Broadband may not, except as otherwise permitted under this Agreement, withdraw or modify its position with respect to an the Merger or approve or recommend any Broadband Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating with respect to any Acquisition Transaction or Broadband Acquisition Proposal. Upon execution of this Agreement, (vi) enter into Broadband immediately will cease any agreement existing activities, discussions or agreement in principle requiring, directly or indirectly, Limestone negotiations with any parties conducted heretofore with respect to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.. Notwithstanding the foregoing, prior to the Effective Time, Broadband may furnish information (including non-public information) to any Person pursuant to appropriate confidentiality agreements (which shall permit the disclosure contemplated by this SECTION 7.5), which agreement shall contain terms no less restrictive than the terms of the confidentiality agreement by and between Las Americas and Broadband dated April 22, 2002, and may negotiate and participate in discussions and negotiations with such Person concerning a Broadband Acquisition Proposal if:
(ba) Notwithstanding anything to the contrary in Section 6.06(a)Such entity or group has submitted, if Limestone or any of its Representatives receives on an unsolicited basis, a bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take written proposal to Broadband's board relating to any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board such transaction which Broadband's board determines in good faith, after consultation consistent with Limestone’s outside legal and financial advisorsadvice from an independent investment banker, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, being funded on the disclosed terms and (ii) is reasonably likely to be consummated in accordance with its terms; and
(b) in the failure opinion of the Limestone Board to take Broadband's board, such action would cause the Limestone Board is reasonably expected to violate its be required in order to discharge Broadband's board's fiduciary duties to the shareholders of Limestone Broadband's stockholders under applicable Law; providedlaw, determined only after Broadband's board concludes in good faith that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Broadband Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably could be expected to lead constitute a proposal that is superior from a financial standpoint with respect to the stockholders of Broadband to the Merger (a "BROADBAND SUPERIOR PROPOSAL"). Immediately prior to providing any Acquisition Proposalmaterial information or engaging in any substantive discussions, Limestone Broadband shall notify Las Americas of: (i) advise Peoples in writing of the receipt existence of any Broadband Acquisition ProposalProposal received by Broadband or its agents or representatives, request or inquiry and the terms and conditions of such Broadband Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including Proposal and the identity of the Person making such Broadband Acquisition Proposal and (ii) any inquiry received by Broadband or Group making the any of its agents or representatives, in each case, with respect to a Broadband Acquisition Proposal, and (iii) shall keep Peoples . Broadband promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously will provide to Peoples Las Americas any non-public information concerning Limestone that may be Broadband provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal party which has was not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at Las Americas. Broadband shall keep Las Americas informed of any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined material change in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that any such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Broadband Acquisition Proposal continues which it or any of its representatives may receive. Notwithstanding the foregoing, Broadband may continue to constitute a Superior Proposal. If during initiate, solicit and encourage discussions regarding acquisitions in the Notice Period any revisions multi-dwelling unit ("MDU") marketplace and may continue to make such MDU acquisitions in the ordinary course of Broadband's business, which proposed acquisitions are made to set forth on SCHEDULE 7.5 of the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticeBroadband Due Diligence Schedules.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Usa Broadband Inc)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, and nor shall cause it authorize or permit any Subsidiary of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “Representatives”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) solicit or induce any inquiry, proposal or offer with respect to, or initiate the making or completion submission of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition ProposalProposal (as defined below), (ii) enter into, continue into any agreement with respect to any Acquisition Proposal or otherwise (iii) participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 5.4 or elsewhere in connection this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company or entering into negotiations or discussions with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead Person in response to an Acquisition ProposalProposal made, (iv) approve, endorse or recommendsubmitted, or propose announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any extent that each of the foregoing.
following conditions is satisfied: (b1) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines Special Committee concludes in good faith, after consultation with Limestone’s outside legal and financial advisorsthe Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (ias defined below), (2) such Acquisition Proposal constitutes is not attributable to a Breach by the Company of this Section 5.4(a) or is reasonably capable of becoming a Superior Proposal, Section 5.4(b); (ii3) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably likely that the failure to take such action would cause it to violate constitute a Breach of its fiduciary duties to the Company Stockholders under applicable lawLaw; provided, that (4) the Limestone Board may not effect a Acceptance Company promptly gives Parent written notice of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that existence of such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) all of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (including which notice shall include materially amended material terms and conditions) throughout the identity pendency of the Company’s discussions or negotiations with such Person or Group making relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Superior ProposalCompany that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent);
(iii) during . Subject to the Notice Periodforegoing provisions of this Section 5.4, Limestone the Company shall, and shall cause its financial advisors and outside counsel Representatives to, negotiate cease immediately all existing activities, discussions and negotiations with Peoples in good faith (to Persons other than Parent regarding any proposal that constitutes, or which the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating Company reasonably believes would lead to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used Proposal, and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Agreement:Section 5.4.
Appears in 1 contract
Sources: Merger Agreement (Resonate Inc)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Notwithstanding Section 6.06(b7.24(a), Limestone shall notif, at any time prior to the fulfillment or waiver of all the terms and shall cause any of its Subsidiaries and conditions contained in Article IX (other than those conditions which, by their nature, are to be satisfied on the officersClosing Date), directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly (1) the Holding Company or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Seller receives a bona fide written Acquisition Proposal, or any inquiry, proposal or offer Proposal that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to not withdrawn from any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with involve a breach of Section 6.06(a), Limestone 7.24(a) and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, (2) the Limestone Board board of directors of the Holding Company determines in good faith, after consultation with Limestone’s its financial advisors and outside legal and financial advisorscounsel, that (i) that such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would could reasonably be expected to lead to any Acquisition a Superior Proposal, Limestone shall and (iii) advise Peoples failure to take the actions set forth in writing clauses (A) and (B) below would be inconsistent with the fiduciary duties under Law of the receipt Holding Company’s board of any Acquisition Proposaldirectors, request the board of directors of Holding Company may or inquiry and the terms and conditions of may cause Seller to, only in connection with such Acquisition Proposal, request or inquiry(A) pursuant and subject to an Acceptable Confidentiality Agreement, (ii) shall promptly provide information to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any has made such written Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein and its Representatives with respect to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing Seller and its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable lawAffiliates; provided, that the Limestone Board Holding Company and Seller shall, (x) provide Buyer with a copy of such executed Applicable Confidentiality Agreement promptly (and in no event later than twenty-four (24) hours) after execution and (y) prior to or substantially concurrently with the delivery to such Person, provide to Buyer any information or data concerning the Holding Company, Seller or any of their Affiliates that is provided or made available to such Person or its Representatives, whether in writing or orally, unless such information has been previously provided to Buyer, in which case the Holding Company and Seller shall promptly (and in no event later than twenty-four (24) hours) provide written notification to Buyer of the information and data so provided (unless such information was not previously provided to Buyer to comply with applicable Law); and (B) may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide engage in such negotiations or discussions with the Person that has made such written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) Representatives with respect to such new written noticeAcquisition Proposal.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Generations Bancorp NY, Inc.)
Acquisition Proposal. (a) From AB and the date of this Agreement through the first Bank will immediately cease and cause to occur of the Effective Time be terminated any existing activities, discussions or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal. AB agrees that neither it nor any of its Subsidiaries will, and the AB will direct and use its commercially reasonable efforts to cause its and its Subsidiaries' directors, officers, directors, employees, advisors agents and other agents representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of Limestone and its Subsidiaries Subsidiaries) not toto initiate, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) encourage or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected offer (including, without limitation, any proposal or offer to lead shareholders of AB) with respect to an Acquisition Event (any such proposal or offer, an "Acquisition Proposal") or 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, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating facilitate any effort or attempt to any Acquisition Transaction make or implement an Acquisition Proposal; except that, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives event AB receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach and the board of Section 6.06(a)directors of AB determines prior to approval of this Agreement and the Merger by AB's shareholders at the AB Meeting, Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, faith and after consultation with Limestone’s outside independent legal and financial advisorscounsel, that (ia) such Acquisition Proposal constitutes or is reasonably capable of becoming expected to result in a Superior Proposal, and (iib) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties applicable to the shareholders of Limestone under applicable Law; providedit require it to engage in negotiations with, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic provide confidential information or inquiry that would reasonably be expected to lead to data to, or have any Acquisition Proposal, Limestone shall (i) advise Peoples discussions with a Person in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of connection with such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that AB may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (do so to the extent Peoples desires the board of directors of AB determines it is required by its fiduciary duties. In such event, prior to so negotiate) providing any confidential information or data to make any such adjustments to the terms Person, AB and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board Person shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute executed a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:confidentiality agreement on
Appears in 1 contract
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Premier Financial shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone Premier Financial and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone Premier Financial to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone Premier Financial or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone Premier Financial and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Premier Financial Board determines in good faith, after consultation with LimestonePremier Financial’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, and (ii) the failure of the Limestone Premier Financial Board to take such action would cause the Limestone Premier Financial Board to violate its fiduciary duties to the shareholders of Limestone Premier Financial under applicable Law; provided, that Limestone Premier Financial receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone Premier Financial shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone Premier Financial agrees that it shall simultaneously provide to Peoples any information concerning Limestone Premier Financial that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Premier Financial Meeting, Limestone Premier Financial may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone Premier Financial has complied with Sections 6.02 and 6.06, and (y) the Limestone Premier Financial Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Premier Financial Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone Premier Financial shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Premier Financial Board shall have concluded in good faith (after consultation with LimestonePremier Financial’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇Peoples;
(ii) Limestone Premier Financial shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Premier Financial Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone Premier Financial shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Premier Financial Board shall have concluded in good faith (after consultation with LimestonePremier Financial’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone Premier Financial shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone Premier Financial from complying with Rule 14d-9 and Rule 14e-2 under the ExchangeExchange Act; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone the Premier Financial Recommendation unless Limestone the Premier Financial Board reaffirms Limestone the Premier Financial Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, and nor shall cause it authorize or permit any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor, agent or representative (collectively, "Representatives") of, the Company or any Company Subsidiary to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) initiate or induce any inquiry, proposal or offer with respect to, or encourage the making or completion submission of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition ProposalProposal (as defined below), (ii) enter into, continue into any agreement with respect to any Acquisition Proposal or otherwise (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any Person or Group person any confidential or nonpublic information with respect to to, or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that nothing in this Section 6.4 or elsewhere in this Agreement shall ----------- prohibit the Company Board from complying with Rules 14d-9 and 14e-2 under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.4; and provided, further, that nothing in this Section 6.4 or ----------- ----------- elsewhere in this Agreement shall prohibit the Company, before the expiration of the Offer or adoption of this Agreement by the Company Shareholders, if applicable, from furnishing information regarding the Company or entering into negotiations or discussions with, any person in response to an Acquisition Proposal made, submitted, or announced by such person (and not withdrawn) or endorsing and/or recommending, or simultaneously with a termination of this Agreement pursuant to Section 9.1(c), entering into an agreement accepting or -------------- providing for, a Superior Proposal, and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to the extent that each of the following conditions is satisfied: (iv1) approve, endorse or recommend, or propose to approve, endorse or recommend any such Acquisition Proposal is not attributable to a Breach by the Company of this Section 6.4(a) -------------- or any agreement related thereto, Section 6.4(b); (v2) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any Board of Directors of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines Company concludes in good -------------- faith, after consultation with Limestone’s its outside legal and financial advisorscounsel, that (i) such Acquisition Proposal constitutes or it is reasonably capable of becoming a Superior Proposal, (ii) likely that the failure of the Limestone Board to take such action would cause the Limestone Board to violate constitute a Breach of its fiduciary duties to the shareholders of Limestone Company Shareholders under applicable Law; provided(3) prior to furnishing any such information to, that Limestone receives from or entering into discussions or negotiations with, such Person or Group an executed confidentiality agreement containing terms no less favorable to person, the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing Company gives Parent written notice of the receipt identity of any Acquisition Proposalsuch person, request or inquiry and the terms and conditions of such Acquisition Proposal and the Company's intention to furnish information to, or enter into discussions or negotiations with, such Person; (4) the Company receives from such Person an executed confidentiality agreement which shall not in any way restrict the Company from complying with its disclosure obligations under this Agreement and which shall contain customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company, restrictions on trading and hostile take-over activities and other terms no less favorable to the Company than those set forth in the Confidentiality Agreement; and (5) contemporaneously with furnishing any such information to such Person, the Company furnishes such information to Parent (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 6.4(a), -------------- the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent and Buyer regarding any proposal that constitutes, or may reasonably be expected to lead to, a Acquisition Proposal, request and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 6.4. -----------
(b) Neither the Company Board nor any committee thereof shall (i) withdraw or inquirymodify, or propose to withdraw or modify, in a manner adverse to Parent or Buyer, the approval or recommendation by the Company Board or any such committee of this Agreement, the Offer or the Merger, (ii) shall promptly provide approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to Peoples a written summary of the material terms of such any Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developmentsapprove or recommend, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide or propose to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person approve or Group in connection with recommend, any Acquisition Proposal which has not previously been provided to Peoples.
(d) Proposal. Notwithstanding anything herein to the contraryforegoing, at any time if, prior to the Limestone Meetingacceptance for payment of Shares pursuant to the Offer, Limestone may accept or approve the Company receives a Superior Proposal thereby withdrawing its recommendation and a majority of the Agreement (“Acceptance directors of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined Company determine in good faith, after consultation with outside legal counsel, that it is reasonably likely that the failure to take do so would constitute a Breach of their fiduciary duties to Company Shareholders imposed by applicable Law, the Company Board may withdraw its approval or recommendation of the Offer, the Merger and this Agreement and, in connection therewith, approve or recommend such action Superior Proposal, provided, that the Company Board shall give Parent two Business Days notice prior to withdrawing its recommendation or entering into an agreement with respect to or recommending a Superior Proposal; and pay to Parent the Termination Fee Provided for in Section 9.3(a) pursuant to Section 9.3(d). --------------- ---------------
(c) The Company promptly shall advise Parent of any Acquisition Proposal or any inquiry with respect to or that could lead to any Acquisition Proposal, the identity of the person or group making any such Acquisition Proposal or inquiry and the material terms of any such Acquisition Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status, including any change to the details, of any such Acquisition Proposal or inquiry and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence with other written material sent or provided (unless previously provided) to the Company from any third party in connection with any Acquisition Proposal or sent or provided by the Company to any third party in connection with any Acquisition Proposal.
(d) Nothing contained in this Section 6.4 shall prohibit the Company from ----------- taking and disclosing to its Shareholders a position contemplated by Rule 14e- 2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's Shareholders if, in the good faith judgment of the Company Board, after receiving advice from outside legal counsel, the failure so to disclose would cause it to violate constitute a Breach of its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (DTM Corp /Tx/)
Acquisition Proposal. (a1) From If at any time following the date of this Agreement through the first and prior to occur of the Effective Time or the termination of this AgreementTime, except as provided in Section 6.06(b), Limestone shall not, and shall cause Vasogen receives any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide written Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Vasogen Board determines in good faith, after consultation with Limestone’s its financial advisors and outside legal counsel, constitutes or is likely to lead to a Superior Proposal, then Vasogen may:
(a) furnish information with respect to Vasogen to the Person making such Acquisition Proposal; and/or
(b) enter into, participate, facilitate and financial advisorsmaintain discussions or negotiations with, and otherwise cooperate with or assist, the Person making such Acquisition Proposal, provided that Vasogen shall not, and shall not allow its Representatives to, disclose any non-public information to such Person without having entered into a confidentiality agreement with such Person that contains provisions that are no less favourable in the aggregate to Vasogen and that are not individually or in the aggregate materially more favourable to such Person than those contained in the Confidentiality Agreement, and provided that such confidentiality agreement may not include any provision calling for an exclusive right to negotiate with Vasogen and may not restrict Vasogen from complying with this Section 8.2, and will promptly provide to the IPC Companies any non-public information concerning Vasogen provided to such other Person which was not previously provided to the IPC Companies.
(2) From and after the date of this Agreement, Vasogen shall promptly (and in any event within 24 hours) notify the IPC Companies at first orally and then in writing of any actual or potential Acquisition Proposal, including a copy of any confidentiality agreement entered into by Vasogen, the identity of the Person making such Acquisition Proposal and the material terms and conditions thereof, and shall, at the IPC Companies’ reasonable request, inform it as to the status of developments and negotiations with respect to such Acquisition Proposal, including any changes to the material terms or conditions of such Acquisition Proposal.
(3) The Vasogen Board shall not effect a Change of Recommendation unless (i) Vasogen has received a bona fide Acquisition Proposal from such Person, (ii) the Vasogen Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (iiiii) Vasogen has provided the IPC Companies with a copy of such Acquisition Proposal, (iv) a period (the “Matching Period”) consistent with the Response Period has lapsed from the date (the “Notice Date”) that is the later of (a) the failure date the IPC Companies received written notice of the Limestone Board Vasogen’s proposed determination to take such action would cause action, and (b) the Limestone Board to violate its fiduciary duties to date the shareholders IPC Companies received a copy of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone (v) during the Matching Period, the IPC Companies shall have the opportunity (ibut not an obligation) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and to offer to amend the terms and conditions of this Agreement such that the Acquisition Proposal would cease to be a Superior Proposal, (vi) after the Matching Period, the Vasogen Board (a) determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal, request or inquiry, (ii) shall promptly provide Proposal continues to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve constitute a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (yb) the Limestone Board has determined determines in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate be inconsistent with its fiduciary duties under applicable law; providedLaw, that and (vii) after the Limestone Matching Period, the Vasogen Board may not effect or any committee thereof effects a Acceptance Change of Superior Proposal unless:
Recommendation. Each successive material modification (i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and including any increase in the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”price) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed constitute a change new Acquisition Proposal for purposes of Section 8.2(1), provided that the Matching Period in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation respect of such new Acquisition Period shall extend only until the later of the end of the initial five (5) Business Day Matching Period and 48 hours after the Notice Date in such disclosurerespect of the new Acquisition Proposal.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Arrangement Agreement (IntelliPharmaCeutics International Inc.)
Acquisition Proposal. (a) From During the period beginning on the date of this Agreement through and continuing until 11:59 p.m. (EST) on November 19, 2007 (the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b“No-Shop Period Start Date”), Limestone shall not, the Company and shall cause any of its Subsidiaries and the their respective directors, officers, directors, employees, advisors investment bankers, attorneys, accountants and other agents of Limestone advisors or representatives and its Subsidiaries not controlled Affiliates (collectively, “Representatives”), shall have the right to, directly or indirectly : (i) solicit, initiate, encouragesolicit and encourage Acquisition Proposals, facilitate (including by way of providing informationaccess to non-public information to any Person pursuant to (but only pursuant to) an Acceptable Confidentiality Agreement; provided that the Company shall concurrently therewith provide to Parent and Merger Sub any non-public information concerning the Company or induce its Subsidiaries that is provided to any inquiry, proposal Person given such access which had not previously been provided or offer made available to Parent or Merger Sub; and (ii) enter into and maintain or continue discussions or negotiations with respect to Acquisition Proposals, or otherwise cooperate with or assist or participate in, or facilitate any such inquiries, proposals, discussions or negotiations.
(b) Except as expressly permitted by Section 7.04(c) and except as may relate to any Excluded Party, the Company and its Subsidiaries and their respective employees, officers and directors shall, and the Company shall direct its and its Subsidiaries’ other Representatives to, (i) on the No-Shop Period Start Date, immediately cease any existing solicitations, discussions or negotiations with any Persons that may be ongoing with respect to any Acquisition Proposal (and the Company shall use commercially reasonable efforts to have all copies of all non-public information it or its Subsidiaries or their respective Representatives have distributed since August 8, 2007 to Persons in connection with their consideration of an Acquisition Proposal (other than with respect to Parent and its Affiliates), destroyed or returned to the Company as soon as possible); and (ii) from the No-Shop Period Start Date until the Effective Time or if earlier, the termination of this Agreement in accordance with Article 9, not (A) initiate, solicit, encourage or facilitate any Acquisition Proposal or the making or completion ofreceipt thereof, including by way of furnishing non-public information or taking any Acquisition Proposalaction to render any of the anti-takeover statutes contained in the PBCL (including Sections 2538 through 2588 thereof) inapplicable to any transaction with any Person (other than Parent and its Affiliates), or any inquiry(B) initiate, proposal or offer that is reasonably likely to lead to any Acquisition Proposalengage in, (ii) enter intoencourage, facilitate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group (other than Parent and its Affiliates) any confidential or nonpublic information with respect to to, assist or participate in connection any effort or attempt by any Person (other than Parent and its Affiliates) with respect to, or otherwise cooperate in any way with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related theretothe making or receipt thereof. On the No-Shop Period Start Date, the Company shall provide written notice to Parent which identifies (vx) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposalall Excluded Parties, and (viy) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or those Excluded Parties who (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything subject to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms other provisions of this Agreement) are reasonably expected to enter into a definitive and binding Acquisition Agreement with the Company providing for a Superior Proposal on or prior to the Extended Go-Shop End Date.
(c) As promptly as practicable (Notwithstanding the provisions of Section 7.04(b) but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein subject to the contrarynext succeeding sentence of this Section 7.04(c), at any time following the No-Shop Period Start Date and prior to the Limestone Meetingtime, Limestone but not after, the Company Shareholder Approval, the Company may accept or approve (A) provide information in response to a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone request therefor by a Person who has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received made an unsolicited bona fide written Acquisition Proposal after the date of this Agreement that did not result in a breach of this Section 7.04, if the Company receives from the Person so requesting such information an executed Acceptable Confidentiality Agreement; provided that the Company shall concurrently therewith provide to Parent and Merger Sub any non-public information concerning the Limestone Company or its Subsidiaries that is provided to any Person making such Acquisition Proposal that is given such access and that had not previously been provided or made available to Parent, Merger Sub or their Representatives; or (B) engage or participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal, if and only to the extent that, prior to taking any action described in clause (A) or (B) above, and after entering into an Acceptable Confidentiality Agreement with such Person, the Company Board shall have concluded determines in good faith (1) after consultation with Limestone’s financial advisors and its outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (2) after consultation with its outside counsel and financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. Notwithstanding the foregoing, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples parties agree that the Limestone Board has received a Superior Company may continue to engage in the activities described in Section 7.04(a) with respect to any Excluded Parties, including with respect to any amended proposal submitted by such Excluded Parties following the No-Shop Period Start Date and prior to the Extended Go-Shop End Date. From and after the No-Shop Period Start Date, the Company shall promptly advise Parent orally (with written confirmation to follow within 24 hours) after receipt by the Company of any Acquisition Proposal, specifying including the material terms and conditions thereof and the identity of the Person making any such Superior Acquisition Proposal (and attaching a true and complete copy thereof). The Company shall keep Parent reasonably informed on a prompt basis of the status and material terms (including all changes to the status and material terms) of any such Acquisition Proposal. From and after the date hereof, the Company shall not and shall cause its Subsidiaries not to enter into any confidentiality or other agreement with any Person or group that restricts or prohibits the Company or any of its Subsidiaries from providing to Parent the foregoing information regarding (including the identity of the Person or Group making the Superior Proposal);
(iiisubmitting) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such an Acquisition Proposal continues or which provides for any exclusive right of negotiation or dealing. The Company agrees not to constitute release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a Superior Proposal. If during party and will use its reasonable best efforts to enforce any such agreement at the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements request of this Section 6.06(d) with respect to such new written noticeor on behalf of Parent.
(ed) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Verticalnet Inc)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, and nor shall cause it authorize or permit any Subsidiary of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company to, nor shall it authorize or permit any officer, director or any investment banker, attorney or other advisor, agent or representative of the Company or any Subsidiary of the Company (collectively, “Representatives”) to, nor shall it authorize, and it shall use commercially reasonable efforts not to permit, any employee of the Company or any Company Subsidiary to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) solicit or induce any inquiry, proposal or offer with respect to, or initiate the making or completion submission of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition ProposalProposal (as defined below), (ii) enter into, continue into any agreement with respect to any Acquisition Proposal or otherwise (iii) participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 5.4 or elsewhere in connection this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company or entering into negotiations or discussions with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead Person in response to an Acquisition ProposalProposal made, (iv) approve, endorse or recommendsubmitted, or propose announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any extent that each of the foregoing.
following conditions is satisfied: (b1) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines Special Committee concludes in good faith, after consultation with Limestone’s outside legal and financial advisorsthe Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Proposal (ias defined below), (2) such Acquisition Proposal constitutes is not attributable to a Breach by the Company of this Section 5.4(a) or Section 5.4(b); (3) the Special Committee concludes in good faith, after consultation with its outside legal counsel, that it is reasonably capable of becoming a Superior Proposal, (ii) likely that the failure of the Limestone Board to take such action would cause the Limestone Board to violate constitute a Breach of its fiduciary duties to the shareholders of Limestone Company Stockholders under applicable Law; provided, that Limestone receives from (4) the Company promptly gives Parent written notice of the existence of such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing all of the receipt of any Acquisition Proposal, request or inquiry and the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; (5) such Person executes a confidentiality agreement with the Company that is customary for such transactions and (6) the Company promptly furnishes to Parent any information provided to such Person (to the extent that such information has not been previously furnished by the Company to Parent). Subject to the foregoing provisions of this Section 5.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, request and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 5.4.
(b) Neither the Company Board nor any committee thereof shall (i) withdraw or inquirymodify, or publicly propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Company Board or any such committee of this Agreement, or the Merger, (ii) shall promptly provide approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to Peoples a written summary of the material terms of such any Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developmentsapprove or recommend, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide or publicly propose to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person approve or Group in connection with recommend, any Acquisition Proposal which has not previously been provided to Peoples.
(d) Proposal. Notwithstanding anything herein to any provision of this Agreement, if, the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve Company receives a Superior Proposal thereby withdrawing its recommendation of and the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined Special Committee determines in good faith, after consultation with outside legal counsel, that it is reasonably likely that the failure to take such action do so would cause it to violate constitute a Breach of its fiduciary duties under to the Company Stockholders imposed by applicable law; Law, the Special Committee may withdraw its recommendation of the Merger and this Agreement and, in connection therewith, recommend such Superior Proposal to the Company Board, provided, however, that the Limestone Board may not effect prior to withdrawing its recommendation or entering into an agreement with respect to or recommending a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Company Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counselA) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written give Parent three Business Days notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and (including the identity of the Person or Group making the Superior Proposal);
(iiiB) during the Notice Periodsubsequent to such notice, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of terminate this Agreement so that such Superior Proposal ceases pursuant to constitute a Superior Proposal; and
(ivSection 7.1(c) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticehereof.
(ec) Nothing contained in this Section 5.4 or elsewhere in this Agreement shall prevent Limestone prohibit the Company from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; providedExchange Act, howeverfrom taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company Stockholders if, that any such disclosure relating in the good faith judgment of the Special Committee, after consultation with outside legal counsel, the failure so to an Acquisition Proposal shall be deemed disclose would constitute a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosureBreach of its fiduciary duties or a violation of applicable Law.
(fd) As used in For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Resonate Inc)
Acquisition Proposal. (a)
(a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone PWOD shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone PWOD and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone PWOD to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone PWOD or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone PWOD and its Representatives may may, and permit its Subsidiaries and its Subsidiaries’ Representatives to, take any action described in Section 6.06(a)(ii)) and participate in negotiations or discussions regarding the foregoing, if, and only if, the Limestone PWOD Board determines in good faith, after consultation with LimestonePWOD’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, and (ii) the failure of the Limestone PWOD Board to take such action would cause the Limestone PWOD Board to violate its fiduciary duties to the shareholders of Limestone PWOD under applicable Law; provided, that Limestone PWOD receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone PWOD shall (i) advise Peoples NWBI in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples NWBI a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples NWBI promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples NWBI with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone PWOD agrees that it shall simultaneously provide to Peoples NWBI any information concerning Limestone PWOD that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to PeoplesNWBI.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone PWOD Meeting, Limestone PWOD may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (xi) from and after the date hereof, Limestone PWOD has complied with Sections 6.02 and 6.06, and (yii) the Limestone PWOD Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone PWOD Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone PWOD shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone PWOD Board shall have concluded in good faith (after consultation with LimestonePWOD’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇NWBI;
(ii) Limestone PWOD shall have provided prior written notice to Peoples NWBI at least five (5) business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples NWBI that the Limestone PWOD Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone PWOD shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples NWBI in good faith (to the extent Peoples NWBI desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone PWOD Board shall have concluded in good faith (after consultation with LimestonePWOD’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by PeoplesNWBI, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone PWOD shall deliver a new written notice to Peoples NWBI giving rise to a new five (5) business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone PWOD from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone PWOD Recommendation unless Limestone PWOD Board reaffirms Limestone PWOD Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause Chart agrees that neither it nor any of its Subsidiaries and the nor any of Chart's or any of Subsidiary's, officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not toor representatives (the "REPRESENTATIVES") shall, directly or indirectly (i) solicitindirectly, initiate, encouragesolicit, encourage or otherwise facilitate (including without limitation by way of providing informationfurnishing confidential information or data) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries regarding or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal (other than by Bancorp). Chart further agrees that neither it nor any of its Subsidiaries nor any of Chart's or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiringof Subsidiary's Representatives shall, directly or indirectly, Limestone 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 enter into any agreement, arrangement or understanding with respect to an Acquisition Proposal or requiring it (or conditioned upon requiring it) to abandon, terminate or fail to consummate the Merger or any other transactions contemplated hereby by this Agreement; provided, however, that nothing contained in this Agreement shall prevent Chart or breach its obligations hereunder, or (vii) propose or agree to do any Chart Board between the date of the foregoing.
(b) Notwithstanding anything this Agreement and prior to the contrary date of Chart Meeting from (A) providing information in Section 6.06(a), if Limestone or any of its Representatives receives response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal that did if Chart Board receives from the Person so requesting such information an executed confidentiality agreement no less favorable to it than the Confidentiality Agreement entered into on June 3, 2004 by Bancorp and Chart (and Chart shall enforce and not result from waive any provision of any confidentiality agreement entered into with any such Person contemplated by this Section 7.9); (B) engaging in any negotiations or arise discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the stockholders of Chart, if and only to the extent that, (i) in connection with a breach of Section 6.06(aeach such case referred to in clause (A), Limestone and its Representatives may take any action described in Section 6.06(a)(ii)(B) or (C) above, if, and only if, the Limestone Chart Board determines in good faith, faith (after consultation with Limestone’s outside legal counsel) and by a majority vote of the entire Chart Board that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law, (ii) in each such case referred to in clause (A) or (B) above, Chart Board also determines in good faith (after consultation with its financial advisorsadvisor) that such Acquisition Proposal, if accepted, is reasonably likely to lead to a Superior Proposal, and (iii) in the case referred to in clause (C) above, (w) Chart Board also determines in good faith (after consultation with its financial advisor) and by a majority of the entire Chart Board that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (iix) Chart Board has given Bancorp five (5) Business Days' prior written notice of its intention to recommend such Acquisition Proposal to the failure stockholders of Chart, (y) Chart Board has considered any changes to the Per Share Merger Consideration and to this Agreement (if any) proposed by Bancorp, and (z) Chart Board has determined in good faith and by a majority vote of the Limestone Board entire Chart Board, after consultation with Chart's outside legal counsel and after consultation with its financial advisor, that such unsolicited proposal remains a Superior Proposal even after the changes proposed by Bancorp. A "Superior Proposal" shall be a bona fide Acquisition Proposal for 100% of the outstanding securities of Chart that is reasonably likely to take be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and, if consummated, is reasonably likely to result in a transaction more favorable to Chart's stockholders from a financial point of view than the Merger. Chart agrees that 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 Proposals and shall request the return or destruction of all confidential information provided to any such action would cause the Limestone Board to violate its fiduciary duties parties prior to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms date of this Agreement.
. Chart agrees that it will notify Bancorp immediately if any inquiries, proposals or offers are received by, any such information is requested from, or any discussions or negotiations are sought to be initiated or continued with, any of its Representatives relating to an Acquisition Proposal. Chart will promptly (cwithin one Business Day) As promptly as practicable (but in no event more than 48 hours) advise Bancorp following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, substance thereof (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the such Acquisition Proposal), and (iii) shall will keep Peoples promptly Bancorp apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy the terms and conditions (and any amendments or modifications thereto) of all material documentation and correspondence relating theretothe Acquisition Proposal) on a current basis. Limestone agrees that Chart will use its commercially-reasonable efforts to enforce (and will not waive any provisions of) any confidentiality or similar agreement entered into by it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing on its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed behalf by ▇▇▇▇ ▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person ▇ & Co. LLC or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise otherwise relating to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticepotential Acquisition Proposal.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Benjamin Franklin Bancorp, M.H.C.)
Acquisition Proposal. (a) From Prior to the date Closing Date, Artra, BCA and Seller agree that none of this Agreement through the first to occur them, nor any of their respective subsidiaries or affiliates, nor any of the Effective Time or the termination of this Agreementrespective directors, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents or representatives of Limestone and its Subsidiaries not tothe foregoing, will, directly or indirectly indirectly, (i) solicit, initiate, encourage, facilitate or encourage (including by way of providing furnishing or disclosing non-public information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal with respect to any merger, consolidation or other business combination involving Artra, BCA or Seller or the sale or other disposition of all or any significant part of the assets or capital stock of Artra, BCA or Sellers (an "Acquisition Transaction") (except that constitutes Artra and BCA may engage in discussions relating to (x) Artra's or BCA's acquisition of the assets, business or capital stock of a third-party or (y) sale of any of Artra's or BCA's assets which are unrelated to the Seller or the Business, provided that such transactions do not in any way delay or interfere with the approval of Artra's shareholders described in Section 5.31 hereof or with the closing of the transactions contemplated by this Agreement (collectively, a "Permitted Transaction")), or (ii) except in connection with Permitted Transactions, negotiate, explore or otherwise engage in discussions with any person (other than Buyer and its representatives) with respect to any Acquisition Transaction, or which may reasonably be expected to lead to a proposal for an Acquisition Proposal, (iv) approve, endorse Transaction or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating agreement, arrangement or otherwise relating understanding with respect to any such Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone which would require it to abandon, terminate or fail to consummate the transactions transaction contemplated hereby or breach its obligations hereunderby this Agreement; provided, or however, that Artra, BCA and Seller may, in response to an unsolicited written proposal from a third party regarding a Superior Proposal (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(aas hereinafter defined), furnish information to and engage in discussions and negotiations with such third party, but only if Limestone or any the Board of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach Directors of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board Artra determines in good faith, after consultation with Limestone’s outside legal its financial advisors and financial advisorsbased upon the written advice of independent Delaware counsel, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board failing to take such action would cause result in a breach of the Limestone Board to violate its fiduciary duties to the shareholders of Limestone such Board of Directors under applicable Law; providedlaw. It is understood and agreed, without limitation of Artra's, BCA's and Seller's obligations, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms any violation of this AgreementSection 7.4 by any director, officer, attorney or other advisor or representative of Artra, BCA or Seller, whether or not such person is purporting to act on behalf of Artra, BCA or Seller, or otherwise, shall be deemed to be a breach of this Section 7.4.
(cb) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from From and after the date hereof, Limestone has complied Artra, BCA and Seller agree that each of them, their subsidiaries and affiliates, and the representatives of the foregoing, shall immediately cease and cause to be terminated any existing activities, discussion or negotiations with Sections 6.02 any person (other than the Buyer and 6.06its representatives) conducted heretofore with respect to any Acquisition Transaction. Artra agrees to promptly advise Buyer in writing of the existence of (x) any inquiries or proposals (or desire to make a proposal) received by (or indicated to), any such information requested from, or any negotiations or discussions sought to be initiated or continued with, Artra, BCA, Seller, their 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 Buyer and its representatives) with respect to an Acquisition Transaction, and (y) the Limestone Board has determined in good faithterms thereof, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of such third party and the Person terms of any financing arrangement or Group making commitment in connection with such Acquisition Transaction, and to update on an ongoing basis or upon the Buyer's reasonable request, the status thereof. As used herein, "Superior Proposal);
" means a bona fide, written and unsolicited proposal or offer made by a person (iiior group) during the Notice Period, Limestone shall, and shall cause (other than Buyer or any of its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(dsubsidiaries) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall Transaction on terms which, as determined by the Board of Directors of Artra in good faith and in the exercise of reasonable judgment (based on the advice of independent financial advisors and independent Delaware counsel), would be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosuremore favorable to Artra and its shareholders than the transactions contemplated hereby.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From the date The Company shall, and shall cause its Subsidiaries to, and its and their respective Representatives to, immediately cease any existing solicitations, discussions or negotiations with any Person (other than Parent and its Affiliates) that has made or indicated an intention to make an Acquisition Proposal. The Company shall use commercially reasonable efforts to have all copies of this Agreement through the first all non-public information it or its Subsidiaries or their respective Representatives have distributed since February 26, 2007 to occur Persons who have executed a confidentiality agreement in connection with such Persons’ consideration of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(ban Acquisition Proposal (other than with respect to Parent and its Affiliates), Limestone destroyed or returned to the Company as soon as possible.
(b) Except as set forth in this Section 7.04, the Company shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, and shall not permit their respective Representatives to, directly or indirectly indirectly, (i) solicit, initiate, encourage, initiate or knowingly encourage or facilitate (including by way of providing furnishing non-public information) or induce any inquiry, proposal or offer with respect to, Acquisition Proposal or the making or completion ofreceipt thereof, including approving any Acquisition Proposaltransaction (or any Person (other than Parent and its Affiliates) becoming an “interested stockholder”) under Section 203 of the DGCL, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter intoinitiate, continue or otherwise participate in or knowingly encourage or facilitate any discussions or negotiations regarding, or furnish to any Person (other than Parent and its Affiliates) any information with respect to, assist or Group participate in any confidential effort or nonpublic attempt by any Person (or any Person (other than Parent and its Affiliates) with respect to, or otherwise cooperate in any way with, any Acquisition Proposal or the making or receipt thereof; provided, however, that, at any time prior to the Company Stockholder Approval, if the Company receives a bona fide written Acquisition Proposal that did not result from a breach of this Section 7.04, the Company may furnish, or cause to be furnished, non-public information with respect to the Company and its Subsidiaries to the Person who made such proposal (provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person) and may participate in connection withdiscussions and negotiations regarding such proposal if (x) the Company Board determines in good faith (after receiving the advice of its outside legal counsel and financial advisor), that (A) the failure to take such action would reasonably be likely to result in a breach of its fiduciary duties under applicable Law and (B) such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (y) prior to taking such action, the Company enters into a confidentiality agreement with respect to such proposal that contains confidentiality and standstill provisions no less restrictive than the Confidentiality Agreement. Without limiting the generality of the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.04(b) by any Representative of the Company or any of its Subsidiaries shall be deemed a breach of this Section 7.04(b) by the Company. The Company shall promptly advise Parent orally (with written confirmation to follow within 24 hours) after receipt by the Company of any Acquisition Proposal, including the material terms and conditions thereof and the identity of the Person making any such Acquisition Proposal (attaching, if available, a true and complete copy thereof). The Company shall keep Parent reasonably informed on a prompt basis of the status and material terms (including all changes to the status and material terms) of any such Acquisition Proposal. From and after the date hereof, the Company shall not and shall cause its Subsidiaries not to enter into any confidentiality or other agreement with any Person or group that restricts or prohibits the Company or any of its Subsidiaries from providing to Parent the foregoing information regarding (including the identity of the Person submitting) an Acquisition Proposal or which provides for any exclusive right of negotiation or dealing. The Company agrees not to release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which the Company is a party and shall use its commercially reasonable efforts to enforce any such agreement at the request of or on behalf of Parent, unless the Company Board determines in good faith (after receiving the advice of its outside legal counsel and financial advisor) that such action (or inaction, in the case of failing to provide any such release or waiver) would be inconsistent with its fiduciary duties under applicable Law.
(c) Prior to the Company Stockholder Approval, neither the Company Board nor any committee thereof shall (r) withdraw or qualify or modify in a manner adverse to Parent or Merger Sub or propose (publicly or otherwise) to withdraw or to qualify or modify in a manner adverse to Parent or Merger Sub, the Company Recommendation, (s) approve, adopt or recommend, or propose (publicly or otherwise) to approve, adopt or recommend, an Acquisition ProposalProposal to holders of the Company Common Stock (any of (r) and (s), an “Adverse Recommendation”) or (iiit) take cause or permit the Company or any other action of its Subsidiaries to facilitate enter into any inquiries letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or the making of any proposal similar agreement (x) constituting or relating to, or that constitutes is intended or may would reasonably be expected to lead to an to, any Acquisition Proposal, (ivother than a confidentiality agreement referred to in Section 7.04(b) approve, endorse or recommendentered into in the circumstances referred to in such Section 7.04(b), or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (vy) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone requiring the Company to abandon, terminate or fail to consummate the transactions Merger or any other transaction contemplated hereby or breach its obligations hereunder, or by this Agreement (vii) propose or agree to do any of (x) and (y), an “Acquisition Agreement”). Notwithstanding the foregoing., but subject to the Company’s compliance at all times with the provisions of Section 7.04, (I) if a written Acquisition Proposal is made prior to the Company Stockholder Approval, the Company Board may make an Adverse Recommendation, if (but only if):
(bi) Notwithstanding anything to the contrary Company Board has determined in Section 6.06(a), if Limestone or any good faith (after receiving the advice of its Representatives receives an unsolicited bona fide Acquisition Proposal outside legal counsel and financial advisor) that did not result from or arise (A) it is required to make such Adverse Recommendation in connection order to comply with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), iffiduciary duties under applicable Law, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (iB) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone the Company shall have provided Parent five (5) Business Days’ prior written notice to Peoples at least five business days in advance (the “Notice Period”) following Parent’s receipt of taking such action, which written notice shall advise Peoples (a “Notice of Superior Proposal”) from the Company (A) representing to Parent that the Limestone Company Board has received a Superior ProposalProposal not in violation of the provisions of Section 7.04, (B) specifying the material terms and conditions of such Superior Proposal (including and attaching, if available, the identity most current and complete version of any written agreement or offer relating thereto), (C) identifying the Person making such Superior Proposal and (D) stating that the Company Board intends to make an Adverse Recommendation; it being understood and agreed that, prior to any such Adverse Recommendation occurring, any amendment to the consideration to be paid in connection with such Superior Proposal or Group making the material amendment to such Superior ProposalProposal shall require a new Notice of Superior Proposal with respect to such amendments (a “Subsequent Notice”) and a new three (3) Business Day Notice Period (a “Subsequent Notice Period”);
(iii) during the such Notice Period or Subsequent Notice Period, Limestone shallas the case may be, and if requested by Parent, the Company shall cause its financial advisors and outside counsel to, negotiate with Peoples have engaged in good faith (negotiations with Parent and its Representatives so as to the extent Peoples desires permit Parent to so negotiate) propose to make such adjustments to the terms and conditions of amend this Agreement so in such a manner that such the Acquisition Proposal that was determined to constitute a Superior Proposal ceases is no longer determined to constitute a Superior Proposal; and
(iv) at the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) thatend of the Notice Period or any Subsequent Notice Period, after considering as the results of such negotiations and giving effect to any proposalscase may be, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal has not been withdrawn and continues to constitute a Superior Proposal, and (II) after an Adverse Recommendation is made in accordance with the foregoing clause (I), the Company shall be entitled to enter into a definitive and binding Acquisition Agreement providing for a Superior Proposal if (but only if) this Agreement is terminated by the Company pursuant to Section 9.01(e) and, concurrently with and as a condition to the effectiveness of any such termination by the Company, the Company shall, concurrently with entering into such definitive and binding Acquisition Agreement, have paid all amounts due to Parent pursuant to Section 9.02. If during The Company agrees that it will not enter into an Acquisition Agreement providing for a Superior Proposal referred to in this Section 7.04(c) until at least the sixth (6th) Business Day after it has provided the Notice Period any revisions are made to of Superior Proposal or until at least the Superior Proposalthird (4th) Business Day after it has provided a Subsequent Notice, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with as the requirements of this Section 6.06(d) with respect to such new written noticecase may be.
(ed) Nothing contained in this Agreement Section 7.04 shall prevent Limestone prohibit the Company from complying with at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and or Rule 14e-2 14e-2(a) promulgated under the ExchangeExchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act, Rule 14e-2(b) promulgated under the Exchange Act or Item 1012(a) of Regulation M-A or from making any other disclosure to its stockholders or in any other regulatory filing if, in the good faith judgment of the Company Board (after receiving the advice of its outside legal counsel and financial advisor), failure to so disclose would be inconsistent with its obligations under applicable Law; provided, however, that (solely except in the case of a “stop-look-and-listen” communication pursuant to Rule 14d-9(f) under the Exchange Act) if any such disclosure relating does not concurrently and expressly reaffirm the Company Recommendation or if it has the effect of withdrawing or qualifying or modifying in a manner adverse to an Acquisition Proposal Parent or Merger Sub the Company Recommendation, then such disclosure shall be deemed a change to be an Adverse Recommendation for all purposes of this Agreement and Parent shall have the right to terminate this Agreement as set forth in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation Section 9.01(f) and receive the Break-Up Fee in such disclosureaccordance with Sections 9.02 and 9.03.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (E-Z-Em, Inc.)
Acquisition Proposal. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement (a) From including the provisions of this Section 6.1(f)), at any time after the date of this Agreement through the first and prior to occur receipt of the Effective Time USI Stockholder Approval, the USI Board may effect a USI Board Recommendation Change or the termination of terminate this Agreement (in compliance with Sections 9.1 and 9.2) in order to enter into an Alternative Acquisition Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of this Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, 6.1(f) if (and only if, ): (A) the Limestone USI Board determines in good faithshall have determined, after consultation with LimestoneUSI’s outside legal counsel and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior ProposalProposal and that the failure to make such USI Board Recommendation Change would constitute a breach of the USI Board’s fiduciary duties under Applicable Law; (B) USI has provided Purchaser at least five (5) Business Days written notice prior to making a USI Board Recommendation Change or entering into an Alternative Acquisition Agreement, which written notice shall include (I) a description in reasonable detail of the reasons for such recommendation change, (iiII) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt written and unredacted copies of any Acquisition relevant proposed transactions agreements (and related ancillary agreements, including any financing commitments), all of which shall be updated on a prompt basis, with any party making a potential Superior Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry specifically including the identity of the Person or Group making the such Superior Proposal), (III) a statement that Sellers have received an Acquisition Proposal, and (iiiIV) shall keep Peoples promptly apprised of a statement that the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide USI Board intends to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve declare a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (yV) the Limestone Board has determined in good faith, after consultation with outside legal counsel, a statement that the failure USI Board intends to take such action would cause effect a USI Board Recommendation Change (a “Recommendation Change Notice”) (it to violate its fiduciary duties under applicable law; provided, being understood that the Limestone Recommendation Change Notice shall not constitute a USI Board may not effect a Acceptance Recommendation Change for purposes of Superior Proposal unless:
this Agreement); (iC) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone Sellers shall, and shall cause its financial advisors and outside counsel their Representatives to, during such five (5) Business Day period, negotiate with Peoples Purchaser in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to in the terms and conditions of this Agreement so that such Superior the Acquisition Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if anyPurchaser, that in its sole discretion, proposes to make any such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period adjustments; (D) Sellers and shall again comply their Representatives have complied with the requirements of this Section 6.06(d6.1(f) in connection with respect any such Superior Proposal; and (E) if Purchaser shall have delivered to such new USI a written notice.
(e) Nothing contained in offer to alter the terms or conditions of this Agreement during the five (5) Business Day period referred to in clause (B) above, the USI Board shall prevent Limestone from complying have determined in good faith, after considering the terms of such offer by Purchaser, after consultation with Rule 14d-9 USI’s outside legal counsel and Rule 14e-2 under the Exchange; provided, howeverfinancial advisors, that the Acquisition Proposal still constitutes a Superior Proposal and that a USI Board Recommendation Change would still be required for the USI Board to not breach its fiduciary duties under Applicable Law. In the event of any material amendment to any Superior Proposal (including any revision in the amount, form or mix of consideration USI’s stockholders or any Seller would receive as a result of any such disclosure relating to an Acquisition Proposal potential Superior Proposal), Sellers shall be deemed required to provide Purchaser with written notice of such material amendment and there shall be a change in Limestone new five (5) Business Day period following such notification during which Sellers and their Representatives shall comply again with the requirements of this Section 6.1(f)(iii), and the USI Board shall not make a USI Board Recommendation unless Limestone Board reaffirms Limestone Recommendation in Change or approve the entry into any Alternative Acquisition Agreement prior to the end of any such disclosureperiod as so extended.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Security Instruments Inc)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone CNNB shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone CNNB and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone CNNB to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone CNNB or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone CNNB and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, if the Limestone CNNB Board determines in good faith, after consultation with LimestoneCNNB’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior 49 Proposal, (ii) the failure of the Limestone CNNB Board to take such action would could reasonably be expected to cause the Limestone CNNB Board to violate its fiduciary duties to the shareholders of Limestone CNNB under applicable Law; provided, that Limestone CNNB receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone CNNB shall (i) advise Peoples LCNB in writing of the receipt of any Acquisition Proposal, request or inquiry and the material terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples LCNB a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples LCNB promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples LCNB with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone CNNB agrees that it shall simultaneously provide to Peoples LCNB any information concerning Limestone CNNB that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to PeoplesLCNB.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone CNNB Meeting, Limestone CNNB may accept or approve a Superior Proposal and thereby withdrawing withdraw its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (xi) from and after the date hereof, Limestone CNNB has complied with Sections 6.02 and 6.06, and (yii) the Limestone CNNB Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone CNNB Board may not effect a an Acceptance of Superior Proposal unless:
(i) Limestone CNNB shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone CNNB Board shall have concluded in good faith (after consultation with LimestoneCNNB’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇LCNB;
(ii) Limestone CNNB shall have provided prior written notice to Peoples LCNB at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples LCNB that the Limestone CNNB Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone CNNB shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples LCNB in good faith (to the extent Peoples LCNB desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone CNNB Board shall have concluded in good faith (after consultation with LimestoneCNNB’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by PeoplesLCNB, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone CNNB shall deliver a new written notice to Peoples LCNB giving rise to a new five business day Notice Period and shall 50 again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Merger Agreement (LCNB Corp)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to 55 Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From During the date of this Agreement through the first to occur of the Effective Time or the termination of this AgreementInterim Period, except as provided in Section 6.06(b), Limestone Seller shall not, and shall Seller will cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries Representatives or Affiliates not to, directly or indirectly (ia) solicit, initiate, seek, entertain, encourage, facilitate (including by way of providing information) facilitate, support or induce (or assist in or cooperate with any Person in) the making, submission or announcement of any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiryexpression of interest, proposal or offer that is constitutes, or would reasonably likely be expected to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection withto, an Acquisition Proposal, (iiib) take enter into, participate in, maintain or continue any communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, (c) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal, (d) enter into any letter of intent or any other action Contract contemplating any Acquisition Proposal, (e) submit any Acquisition Proposal to facilitate any inquiries or the making vote of any proposal securityholders of Seller, (f) consummate or otherwise effect a transaction providing for any Acquisition Proposal or (g) disclose or make available any information not customarily disclosed to any Person concerning the Acquired Companies’ businesses, properties or assets or technologies, or afford to any Person access to its properties or books or records, in either case in contemplation of any Acquisition Proposal or any transaction that constitutes or may would reasonably be expected to lead to an Acquisition Proposal. Seller shall immediately cease and cause to be terminated any and all existing activities, (iv) approve, endorse discussions or recommend, or propose to approve, endorse or recommend negotiations with any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating Persons with respect to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any . Seller shall promptly notify Buyer after receipt by it of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such an Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board any inquiry, proposal or offer that constitutes, or would reasonably be expected to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; providedlead to, an Acquisition Proposal, (iii) any other notice that Limestone receives from such any Person is considering making an Acquisition Proposal, or (iv) any request for information by any Person or Group an executed confidentiality agreement containing terms no less favorable Persons (other than Buyer and its Affiliates and Representatives) not customarily disclosed to any Person concerning the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but Acquired Companies’ businesses, properties and assets in no event more than 48 hours) following receipt contemplation of any Acquisition Proposal or any request for nonpublic information or inquiry that transaction which would reasonably be expected to lead to any an Acquisition Proposal. Promptly, Limestone and in any event within five (5) Business Days after the Effective Date, Seller shall (i) advise Peoples in writing of request each Person (other than Buyer and its Representatives) to whom information regarding the receipt of any Acquisition Proposal, request or inquiry Acquired Companies and the terms Projects was made available to return to Seller or to destroy such information and conditions of thereafter use Commercially Reasonable Efforts to ensure such Acquisition Proposal, request or inquiryPersons comply with such request, (ii) shall promptly provide terminate access to Peoples a written summary of the material terms on-line data room maintained by Seller in respect of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposalinformation for all Persons other than Buyer and its Representatives, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with deliver a copy of all material documentation and correspondence relating theretosuch on-line data room as of 12:01 A.M. (Toronto time) on a current basisthe Effective Date to Buyer on CD-ROM or similar medium. Limestone agrees Seller shall be deemed to have breached the terms of this Section 6.24 if any of its Affiliates or Representatives takes any action that it is prohibited by this Section 6.24. The Parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 6.24 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the Parties hereto that Buyer shall simultaneously provide be entitled to Peoples any information concerning Limestone that may be provided (pursuant seek an injunction or injunctions to prevent breaches of the provisions of this Section 6.06(b)) 6.24 and to enforce specifically the terms and provisions hereof, this being in addition to any other Person remedy to which Buyer may be entitled at law or Group in connection with any Acquisition Proposal which has not previously been provided to Peoplesequity.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
Appears in 1 contract
Sources: Purchase and Sale Agreement (NextEra Energy Partners, LP)
Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Premier Financial shall not, and shall cause any of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone Premier Financial and its Subsidiaries not to, directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone Premier Financial to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone Premier Financial or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone Premier Financial and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Premier Financial Board determines in good faith, after consultation with LimestonePremier Financial’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, and (ii) the failure of the Limestone Premier Financial Board to take such action would cause the Limestone Premier Financial Board to violate its fiduciary duties to the shareholders of Limestone Premier Financial under applicable Law; provided, that Limestone Premier Financial receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone Premier Financial shall (i) advise Peoples in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence Table of Contents relating thereto) on a current basis. Limestone Premier Financial agrees that it shall simultaneously provide to Peoples any information concerning Limestone Premier Financial that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Premier Financial Meeting, Limestone Premier Financial may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone Premier Financial has complied with Sections 6.02 and 6.06, and (y) the Limestone Premier Financial Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Premier Financial Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone Premier Financial shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Premier Financial Board shall have concluded in good faith (after consultation with LimestonePremier Financial’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇Peoples;
(ii) Limestone Premier Financial shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Premier Financial Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone Premier Financial shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Premier Financial Board shall have concluded in good faith (after consultation with LimestonePremier Financial’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone Premier Financial shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone Premier Financial from complying with Rule 14d-9 and Rule 14e-2 under the ExchangeExchange Act; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone the Premier Financial Recommendation unless Limestone the Premier Financial Board reaffirms Limestone the Premier Financial Recommendation in such disclosure.. Table of Contents
(f) As used in this Agreement:
Appears in 1 contract
Acquisition Proposal. (a) From Between the date of this Agreement through and the first to occur Closing Date, each of the Effective Time Sellers shall not sell, transfer, hypothecate or grant any other Encumbrance upon any of the termination Turn-Matic Shares or agree to do so. In addition, between the date of this Agreement, except as provided in Section 6.06(b), Limestone shall Agreement and the Closing Date each of the Sellers will not, and shall cause will not authorize or permit any of its Subsidiaries and the officers, directors, employees, advisors and investment bankers, financial advisors, attorneys, accountants or other representatives or agents of Limestone and its Subsidiaries not retained by Sellers or Turn-Matic to, directly solicit or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) or induce any inquiry, proposal or offer with respect toencourage the making of, or the making agree to or completion of, endorse any Acquisition ProposalProposal (as defined below), or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regardingnegotiations, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take provide any other action to facilitate Person with any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to an Acquisition Proposalnonpublic information, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction such proposal, except that Sellers or Acquisition Proposal, (vi) enter into Turn-Matic may advise any agreement or agreement in principle requiring, directly or indirectly, Limestone Person making any such proposal that Sellers cannot discuss the proposal due to abandon, terminate or fail to consummate the pendency of the transactions contemplated hereby or breach its obligations hereunder, or herein (vii) propose or agree to do but without disclosing any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines in good faith, after consultation with Limestone’s outside legal and financial advisors, that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board to take such action would cause the Limestone Board to violate its fiduciary duties to the shareholders of Limestone under applicable Law; provided, that Limestone receives from such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As such transactions contemplated herein or the identity of Buyer). The Sellers will promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples Buyer orally and in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary proposals. Each of the material terms of such Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone Sellers shall, and shall cause its Turn-Matic and any investment banker, financial advisors and outside counsel advisor, attorney, accountant or other representative or agent retained by any of them to, negotiate immediately cease any existing discussions relating to any Acquisition Proposals and shall not release any other Person from or waive any provision of any confidentiality or standstill agreement which relates to any Acquisition Proposal. As used in this Agreement, "Acquisition Proposal" shall mean any tender or exchange offer, proposal for a merger, consolidation or other business combination, liquidation or dissolution involving Turn-Matic or any proposal or offer to acquire in any manner any equity interest in, or any portion of the assets (other than in the ordinary course of business consistent with Peoples past practice) of, Turn-Matic, other than the transactions contemplated or permitted by this Agreement. Notwithstanding the foregoing, (i) Majority Shareholders may make gifts of Turn-Matic Shares solely to those persons who are other -29- 38 Sellers, and (ii) Sellers may make transfers of Turn-Matic Shares to trusts for the benefit of the respective transferor Seller or Sellers, in good faith each case under clause (i) and (ii) being subject to the extent Peoples desires and expressly conditioned upon a prospective transferor having first (a) provided full and complete details and copies of documentation of such proposed transfer to so negotiateBuyer, (b) ensured delivery of all Turn-Matic Shares affected to make such adjustments to Buyer in accordance with the terms and conditions of this Agreement so that such Superior Proposal ceases Agreement, and (c) caused the transferor and any transferee to constitute confirm in writing to Buyer their acknowledgement and agreement to be and remain fully and primarily responsible and liable for all representations, warranties, covenants, obligations, indemnifications and liabilities as a Superior Proposal; Seller and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if anyapplicable, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written notice.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 Majority Shareholder under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:.
Appears in 1 contract
Acquisition Proposal. (a) From the date of Unless and until this Agreement through shall have been terminated by either party in accordance with Article 10, the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone Seller shall not, and nor shall cause it permit any of its Subsidiaries and to, nor shall it authorize or permit any Employee, investment banker, attorney, accountant or other advisor or representative of the officers, directors, employees, advisors and other agents Seller or any of Limestone and its Subsidiaries not to, directly or indirectly indirectly: (i) solicit, initiate, encourage, facilitate (including by way or encourage the submission of providing information) or induce any inquiry, proposal or offer with respect to, from any other person or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead entity relating to any Acquisition Proposal, ; (ii) enter intocooperate with, continue or otherwise furnish or cause to be furnished any non-public information concerning its business, properties or assets or the business, properties or assets of any of its Subsidiaries to, any other person or entity in connection with any Acquisition Proposal; (iii) participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or which may reasonably be expected to lead to an to, any Acquisition Proposal, ; or (iv) approveenter into any agreement or understanding with any other Person or entity with the intent to effect any Acquisition Proposal. Notwithstanding the foregoing, endorse nothing contained in this Section 5.4 shall, on or after the date of this Agreement, prohibit the Seller or its Board of Directors, to the extent required by its fiduciary duties under applicable law (based upon the advice of counsel selected by the Seller), from (1) providing information to, or participating in discussions or negotiations with any Person or entity that makes an unsolicited inquiry with respect to the Seller if the Board of Directors reasonably believes that such Person or entity may propose an Acquisition Proposal on terms that, for the Shareholders, are superior from a financial point of view to the terms of the transactions contemplated hereby (a "Superior Acquisition Proposal"), or (2) subject to Section 5.4(c), entering into an agreement with respect to a Superior Acquisition Proposal after receipt by Buyer of the notices required under Section 5.4(c).
(b) The Board of Directors shall not, except in compliance with the requirements of this Section 5.4: (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Buyer, the Board of Directors' approval or recommendation and support of this Agreement and the transactions contemplated hereby, (ii) approve or recommend, or propose to approveapprove or recommend, endorse or recommend any Acquisition Proposal or any agreement related theretoProposal, (viii) enter into any agreement contemplating or otherwise relating with respect to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (viiiv) propose or agree to do any of terminate this Agreement, unless the foregoing.
(b) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives Seller receives an unsolicited unsolicited, written, bona fide Acquisition Proposal that did is not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take subject to any action described in Section 6.06(a)(ii), ifmaterial contingency relating to financing, and only if, the Limestone Board of Directors determines in good faith, after faith (following consultation with Limestone’s outside legal both financial advisors and financial advisorscounsel selected by the Seller with the prior written consent of Buyer, provided that such consent shall not be unreasonably withheld), that (i) such Acquisition Proposal constitutes or is reasonably capable of becoming a Superior Proposal, (ii) the failure of the Limestone Board in order to take such action would cause the Limestone Board to violate comply with its fiduciary duties to the shareholders of Limestone Shareholders under applicable Law; providedlaw, that Limestone receives it is necessary for the Board of Directors to withdraw or modify its approval or recommendation of this Agreement and the transactions contemplated hereby, approve or recommend such Acquisition Proposal, enter into an agreement with respect to such Acquisition Proposal, or terminate this Agreement. Nothing contained in this Section 5.4 shall prohibit the Seller from such Person or Group an executed confidentiality agreement containing terms no less favorable taking and disclosing to the disclosing party than Shareholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the confidentiality terms Exchange Act or from making any disclosure to the Shareholders, which, in the good faith judgment of this Agreementthe Board of Directors (based on the advice of counsel) is required under applicable law.
(c) As The Seller shall notify Buyer orally (within one Business Day) and in writing (as promptly as practicable (but in no event more than 48 hourspracticable) following receipt of all of the relevant details relating to all inquiries beyond preliminary inquires and all proposals of substance which it or any of its Subsidiaries or of any Employee, investment banker, financial advisor, attorney, accountant or other representative of the Seller or any Subsidiary, to the extent of the Seller's knowledge of any such inquiry or proposal, may receive relating to any Acquisition Proposal and if such Acquisition Proposal is in writing, the Seller shall deliver to Buyer a copy of such inquiry or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall proposal (i) advise Peoples in writing of within one Business Day after the receipt of any such inquiry or proposal). The Seller may terminate this Agreement at any time after the third Business Day following notice to Buyer (a "Notice of Superior Acquisition Proposal, request or inquiry ") advising Buyer that the Board of Directors has received a Superior Acquisition Proposal and specifying the terms structure and conditions of such Acquisition Proposal, request or inquiry, (ii) shall promptly provide to Peoples a written summary of the material terms of such Superior Acquisition Proposal, request or inquiry including the identity of the Person or Group making the but only if a proposal continues to be a Superior Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status Proposal in light of any related developments, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees changes that it shall simultaneously provide to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person or Group Buyer proposes in connection with any Acquisition Proposal which has not previously been provided to Peoples.
(d) Notwithstanding anything herein to the contrary, at any time transactions contemplated hereby prior to the Limestone Meeting, Limestone may accept or approve a Superior Proposal thereby withdrawing its recommendation end of the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Limestone Board may not effect a Acceptance of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days in advance (the “Notice Period”) of taking such action, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (including the identity of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticethree Business Day period.
(e) Nothing contained in this Agreement shall prevent Limestone from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; provided, however, that any such disclosure relating to an Acquisition Proposal shall be deemed a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosure.
(f) As used in this Agreement:
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Acquisition Proposal. (a) From the date of this Agreement through the first to occur of the Effective Time or the termination of this Agreement, except as provided in Section 6.06(b), Limestone The Company shall not, and nor shall cause it authorize or permit any Representative of its Subsidiaries and the officers, directors, employees, advisors and other agents of Limestone and its Subsidiaries not Company to, (i) directly or indirectly (i) solicit, initiate, encourage, facilitate (including by way of providing information) solicit or induce any inquiry, proposal or offer with respect to, or initiate the making or completion submission of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or Group any confidential or nonpublic information with respect to any Acquisition Proposal; provided, however, that nothing in this Section 4.4 or elsewhere in connection this Agreement shall prohibit the Company, before the Closing Date, from furnishing information regarding the Company or entering into negotiations or discussions with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead Person in response to an Acquisition ProposalProposal made, (iv) approve, endorse or recommendsubmitted, or propose announced by such Person (and not withdrawn) and any such actions enumerated in this provision shall not be considered a Breach of this Agreement if and to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto, (v) enter into any agreement contemplating or otherwise relating to any Acquisition Transaction or Acquisition Proposal, (vi) enter into any agreement or agreement in principle requiring, directly or indirectly, Limestone to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vii) propose or agree to do any extent that each of the foregoing.
following conditions is satisfied: (b1) Notwithstanding anything to the contrary in Section 6.06(a), if Limestone or any of its Representatives receives an unsolicited bona fide Acquisition Proposal that did not result from or arise in connection with a breach of Section 6.06(a), Limestone and its Representatives may take any action described in Section 6.06(a)(ii), if, and only if, the Limestone Board determines Special Committee concludes in good faith, after consultation with Limestone’s the Financial Advisor, that the Acquisition Proposal is reasonably likely to lead to a Superior Offer; (2) the Special Committee concludes in good faith, after consultation with its outside legal and financial advisorscounsel, that (i) such Acquisition Proposal constitutes or it is reasonably capable of becoming a Superior Proposal, (ii) likely that the failure of the Limestone Board to take such action would cause the Limestone Board to violate constitute a Breach of its fiduciary duties to the Company’s shareholders of Limestone under applicable Lawlaw; provided, that Limestone receives from (3) the Company promptly gives Parent written notice of the existence of such Person or Group an executed confidentiality agreement containing terms no less favorable to the disclosing party than the confidentiality terms of this Agreement.
(c) As promptly as practicable (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Limestone shall (i) advise Peoples in writing all of the receipt of any Acquisition Proposal, request or inquiry and the material terms and conditions of such Acquisition Proposal and the Company’s intention to furnish information to, or enter into discussions or negotiations with, such Person, and the Company promptly gives Parent written notice of any amendment in the material terms and conditions of such Acquisition Proposal (which notice shall include materially amended material terms and conditions) throughout the pendency of the Company’s discussions or negotiations with such Person relating to such amended Acquisition Proposal; and (4) such Person executes a confidentiality agreement with the Company. Subject to the foregoing provisions of this Section 4.4, the Company shall, and shall cause its Representatives to, cease immediately all existing activities, discussions and negotiations with Persons other than Parent regarding any proposal that constitutes, or which the Company reasonably believes would lead to an Acquisition Proposal, request and will take the necessary steps to inform the Persons referred to above of the obligations undertaken in this Section 4.4.
(b) The Board of Directors of the Company shall not (i) withdraw or inquirymodify, or publicly propose to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Board of Directors of the Company of this Agreement, or the Merger, (ii) shall promptly provide approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to Peoples a written summary of the material terms of such any Acquisition Proposal, request or inquiry including the identity of the Person or Group making the Acquisition Proposal, and (iii) shall keep Peoples promptly apprised of the status of any related developmentsapprove or recommend, discussions and negotiations (including providing Peoples with a copy of all material documentation and correspondence relating thereto) on a current basis. Limestone agrees that it shall simultaneously provide or publicly propose to Peoples any information concerning Limestone that may be provided (pursuant to Section 6.06(b)) to any other Person approve or Group in connection with recommend, any Acquisition Proposal which has not previously been provided to Peoples.
(d) Proposal. Notwithstanding anything herein to any provision of this Agreement, if, the contrary, at any time prior to the Limestone Meeting, Limestone may accept or approve Company receives a Superior Proposal thereby withdrawing its recommendation of Offer and the Agreement (“Acceptance of Superior Proposal”), if and only if (x) from and after the date hereof, Limestone has complied with Sections 6.02 and 6.06, and (y) the Limestone Board has determined Special Committee determines in good faith, after consultation with outside legal counsel, that it is reasonably likely that the failure to take such action do so would cause it to violate constitute a Breach of its fiduciary duties under to the Company’s shareholders imposed by applicable law; provided, that the Limestone Board Special Committee may not effect a Acceptance withdraw its recommendation of Superior Proposal unless:
(i) Limestone shall have received an unsolicited bona fide written Acquisition Proposal the Merger and the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to or proposed by ▇▇▇▇▇▇▇;
(ii) Limestone shall have provided prior written notice to Peoples at least five business days and, in advance (the “Notice Period”) of taking such actionconnection therewith, which notice shall advise Peoples that the Limestone Board has received a Superior Proposal, specifying the material terms and conditions of recommend such Superior Proposal (including Offer to the identity Board of Directors of the Person or Group making the Superior Proposal);
(iii) during the Notice Period, Limestone shall, and shall cause its financial advisors and outside counsel to, negotiate with Peoples in good faith (to the extent Peoples desires to so negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Limestone Board shall have concluded in good faith (after consultation with Limestone’s financial advisors and outside legal counsel) that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Peoples, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, Limestone shall deliver a new written notice to Peoples giving rise to a new five business day Notice Period and shall again comply with the requirements of this Section 6.06(d) with respect to such new written noticeCompany.
(ec) Nothing contained in this Section 4.4 or elsewhere in this Agreement shall prevent Limestone prohibit the Company from complying with Rule 14d-9 and Rule 14e-2 under the Exchange; providedExchange Act, howeverfrom taking and disclosing to the Company’s shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company’s shareholders if, that any such disclosure relating in the good faith judgment of the Special Committee, after consultation with outside legal counsel, the failure so to an Acquisition Proposal shall be deemed disclose would constitute a change in Limestone Recommendation unless Limestone Board reaffirms Limestone Recommendation in such disclosureBreach of its fiduciary duties or a violation of applicable law.
(f) As used in this Agreement:
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Sources: Merger Agreement (Prab Inc)