Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction"). (b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreement), confidential or non-public information to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5. (c) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. (d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 3 contracts
Sources: Merger Agreement (American Disposal Services Inc), Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Allied Waste Industries Inc)
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, prior to receipt of the Company Stockholders' Approval, in response to an unsolicited bona fide written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") from a corporation, partnership, person or other entity or group (a "Potential Acquirer") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would could reasonably be expected to result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Qualifying Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementthe Confidentiality Agreement (as defined in Section 5.04), ) confidential or non-public information to a financially capable corporationto, partnership, person or other entity or group (a "Potential Acquirer") and negotiate andwith, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Acquisition Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty duties to the Company's stockholders, and, upon termination of this Agreement in accordance with Section 7.01(v) or (vi) and after payment to Parent of the fee pursuant to Section 5.11(b), resolve to accept, or recommend, or enter into agreements relating to, a Qualifying Proposal as to which the Company's Board of Directors, in good faith, has determined is reasonably likely to be consummated (such Qualifying Proposal being a "Superior Proposal") and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange ActAct or otherwise make disclosure required by the federal securities laws. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.55.03.
(c) The Company shall immediately promptly notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the material terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person person and the material terms and conditions of such proposal or offeroffer and the financing arrangements, if any, relating thereto.
Appears in 2 contracts
Sources: Merger Agreement (Allied Waste Industries Inc), Merger Agreement (Browning Ferris Industries Inc)
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, knowingly encourage or provide confidential information to facilitate, and the Company shall, and shall use cause each of its reasonable efforts to subsidiaries to, cause any officer, director or employee of the Companyof, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiariesit, not to initiate, solicit, negotiate, knowingly encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business and properties of the Company or any capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions transaction (other than the Merger) being referred to herein as an "Acquisition TransactionACQUISITION TRANSACTION").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer proposal or proposal indication of interest with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior ProposalACQUISITION PROPOSAL"), furnish (subject to the execution of a confidentiality agreement substantially similar to and standstill agreement containing provisions not more favorable than the confidentiality and standstill provisions of this agreement)the Confidentiality Agreements, as defined in Section 10.4) confidential or non-public information to a financially capable corporation, partnership, person or other entity or group (a "Potential AcquirerPOTENTIAL ACQUIRER") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the CompanyCompany in good faith, after consulting consultation with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.56.3. The Company and its subsidiaries have ceased, and have directed all of their respective officers, directors, employees, financial advisors and other agents or representatives to cease, all activities, discussions or negotiations, if any, with any persons or entities conducted heretofore with respect to any Acquisition Proposals.
(c) The Company shall immediately notify Parent as soon as practicable after receipt of (i) the Company has received any Acquisition Proposal, indication (ii) the Company's Board of interest Directors or its chief executive officer or chief financial officer has actual knowledge that any person or entity intends to make an Acquisition Proposal, or (iii) the Company has received any request for non-public nonpublic information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After . The Company will keep Parent fully informed of the date hereof status and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt details of any proposal such Acquisition Proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offerrequest.
Appears in 2 contracts
Sources: Merger Agreement (Westell Technologies Inc), Merger Agreement (Teltrend Inc)
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use cause its reasonable efforts to subsidiaries to, (i) cause any officer, director or employee of the Companyof, or any attorney, accountant, investment banker, financial advisor accountant or other agent retained by it and (ii) use its reasonable best efforts to cause any financial advisor or any of its subsidiariesinvestment banker retained by it, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business and properties of the Company or any capital stock of the Company, whether by merger, purchase of assetsof, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition TransactionTransactions").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar reasonably acceptable to the confidentiality provisions of this agreement), Company) confidential or non-public information concerning its business, properties or assets to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and or negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if (i) it has in connection therewith complied with subsection (c) of this Section, and (ii) based upon advice of outside legal counsel to the special committee of the Board of Directors of (the Company"Special Committee") established to review and evaluate the transactions contemplated by this Agreement, after consulting with its outside legal counsel, the Special Committee and the Board determines in good faith that consideration of the Superior Proposal there is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or risk that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5its shareholders.
(c) The In the event the Company shall immediately notify Parent after receipt of determine to provide any Acquisition Proposalinformation or negotiate as described in paragraph (b) above, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records shall receive any offer of the Company type referred to in paragraph (b) above, it shall promptly (and in any event, at least prior to providing information or any subsidiary by any person commencing negotiations) inform Parent that information is to be provided, that negotiations are to take place or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or an offer has made, an Acquisition Proposal. Such notice been received and shall furnish to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and person receiving such information or the terms and conditions proponent of such proposaloffer, inquiry or contactif applicable, and, if an offer has been received, a description of the material terms thereof.
(d) After The Company may enter into a definitive agreement for an Acquisition Transaction which meets the date hereof requirements set forth above with a Potential Acquirer with which it is permitted to negotiate pursuant to paragraph (b) above, but only if (i) the Board shall have duly determined that such Acquisition Transaction would yield a higher value to the Company's shareholders than the aggregate Merger Consideration and that the execution of such definitive agreement is in the best interests of the Company's shareholders, (ii) at least five (5) business days prior to the Effective Time or earlier termination execution of this Agreementsuch definitive agreement, the Company shall have furnished the Parent with a copy of such definitive agreement, and (iii) the Parent shall promptly notify have failed within such five (5) business day period to offer to amend the terms of this Agreement in order that the Merger would yield a value to the Company's shareholders at least equal in the good faith judgment of the Board to the Acquisition Transaction.
(e) The Company after receipt (i) acknowledges that a breach of any proposal or offer of its covenants contained in this Section 7.3 will result in irreparable harm to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether other party which will not be compensable in money damage and (ii) agrees that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the Parent for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions breach of such proposal or offercovenant.
Appears in 2 contracts
Sources: Merger Agreement (Comforce Corp), Merger Agreement (Uniforce Services Inc)
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its all reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, prior to receipt of the Company Shareholders' Approval, in response to an unsolicited bona fide written offer or proposal with respect to a potential or proposed Acquisition Transaction (an "Acquisition Proposal") from a corporation, partnership, person or other entity or group (a "Potential Acquirer") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would reasonably be expected to result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders shareholders than the Merger (any such offer or proposal being referred to as a "Superior Qualifying Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementConfidentiality Agreement (as defined in Section 5.04), ) confidential or non-public information to a financially capable corporationto, partnershipand negotiate with, person or other entity or group (a "such Potential Acquirer") and negotiate , may resolve to accept, or recommend, and, upon termination of this Agreement in accordance with Section 9.1(a)(iv7.01(v) and after payment to Parent of the fee pursuant to Section 7.6(b5.09(b), enter into agreements with such Potential Acquirer if relating to, a Qualifying Proposal which the Company's Board of Directors of the CompanyDirectors, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal faith, has determined is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute be consummated (such Qualifying Proposal being a breach of its fiduciary duty to the Company's stockholders, "Superior Proposal") and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders shareholders a position contemplated by Rule 14e-2 under the Exchange ActAct or otherwise make disclosure required by the federal securities laws. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.55.03.
(c) The Company shall immediately promptly notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made given orally and in writing and shall indicate in reasonable detail the identity of the offeror and the material terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 2 contracts
Sources: Merger Agreement (Cd Entertainment LTD), Merger Agreement (Colonial Downs Holdings Inc)
Acquisition Transactions. (a) After the date hereof and ------------------------ prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public nonpublic or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business or properties of the Company or any capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, (other than a transaction permitted pursuant to Section 6.1(d)) whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").. ------------------------
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition ----------- Proposal") which the Company's Board of Directors determines, in good faith and -------- after consultation with its independent financial advisor, would could result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a ----------------- confidentiality agreement substantially similar to the confidentiality provisions of this agreementAgreement), confidential or non-public nonpublic information to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of ------------------ Directors of the Company, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public nonpublic information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, stockholders and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5.
(c) The Company shall immediately promptly (but in any event within 48 hours) notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public nonpublic information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Sources: Merger Agreement (Eastern Environmental Services Inc)
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its reasonable efforts to cause each of it subsidiaries to, cause any officer, director or employee of the Companyof, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiariesit, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business and properties of the Company or any capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition TransactionTransactions").;
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed an Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreement)the Confidentiality Agreement, executed by Parent in connection herewith) confidential or non-public information concerning its business, properties or assets to a financially capable corporation, partnership, person or other entity or group (a "Potential AcquirerAcquiror") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer Acquiror if (i) the Board of Directors of the Company in good faith concludes that such Acquisition Proposal (if consummated pursuant to its terms) would result in a transaction more favorable to the Company, after consulting with 's stockholders than the Merger and (ii) based upon advice of its outside legal counsel, its Board of Directors determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer Acquiror would be reasonably likely to constitute a breach of its fiduciary duty to its stockholders (any such Acquisition Proposal meeting the Company's stockholderscondition of clause (i) being referred to as a "Superior Proposal"). Moreover, and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated with respect to a tender offer by Rule 14e-2 a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act. It Act or may make such other disclosures to the Company's stockholders which, as advised by outside counsel, is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5required under applicable law.
(c) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest Proposal or any request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such 23 proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Sources: Merger Agreement (Transamerican Waste Industries Inc)
Acquisition Transactions. (a) After the date hereof and ------------------------ prior to the Effective Time or earlier termination of this Agreement, except in accordance with Section 5.03(b), the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its all reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, prior to receipt of the Company Stockholders' Approval, in response to an unsolicited bona fide written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") from a corporation, partnership, person or other entity or group (a "Potential Acquirer") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would reasonably be expected to result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Qualifying Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementthe Confidentiality Agreement (as defined in Section 5.04), ) confidential or non-public information to a financially capable corporationto, partnershipand negotiate with, person or other entity or group (a "such Potential Acquirer") and negotiate , may resolve to accept, or recommend, and, upon termination of this Agreement in accordance with Section 9.1(a)(iv7.01(v) and after payment to Parent of the fee pursuant to Section 7.6(b5.09(b), enter into agreements with such Potential Acquirer if relating to, a Qualifying Proposal which the Company's Board of Directors of the CompanyDirectors, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal faith, has determined is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute be consummated (such Qualifying Proposal being a breach of its fiduciary duty to the Company's stockholders, "Superior Proposal") and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange ActAct or otherwise make disclosure required by the federal securities laws. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.55.03.
(c) The Company shall immediately promptly notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made given orally and in writing and shall indicate in reasonable detail the identity of the offeror and the material terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Sources: Merger Agreement (Black Hawk Gaming & Development Co Inc)
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its reasonable best efforts to cause any officerits and its subsidiaries' officers, director directors or employee of the Companyemployees, or and any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to to, initiate, solicitsolicit or encourage, negotiatedirectly or indirectly, encourage any inquiries or provide non-public the making of any proposal or confidential information to facilitateoffer (including, without limitation, any proposal or offer to acquire stockholders of the Company) with respect to a merger, consolidation or similar transaction involving, or any purchase of all or any substantial part share of, or purchase of all or substantially all of the businessassets of, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities Company or any other consideration or combination thereof of its subsidiaries (any such transactions being referred to herein as an a "Company Acquisition Transaction")) or engage in any discussions or negotiations concerning, or provide any confidential or non-public information or data to, or have any discussions with any person (other than its professional advisors) relating to any Company Acquisition Transaction, or otherwise facilitate any effort or attempt to make or implement a Company Acquisition Transaction.
(b) Notwithstanding the provisions of paragraph (a) aboveabove or of this Agreement, (i) if, after the date of this Agreement, the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreement), confidential or non-public information to receives from a financially capable corporation, partnership, person or other entity or group that has not had any discussions with, or been solicited by, the Company or its representatives prior to the date hereof with respect to a possible Company Acquisition Transaction (a "Potential AcquirerAcquiror") and negotiate and, upon termination a bona fide written offer or proposal with respect to a Company Acquisition Transaction (an "Acquisition Proposal") that (A) was not solicited in violation of paragraph (a) of this Agreement in accordance with Section 9.1(a)(iv8.2 and (B) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the CompanyCompany determines, after consulting with its outside legal counsel, determines in good faith that consideration of after consultation with its financial advisors, is reasonably likely to lead to a "Superior Proposal" (as defined below), the Superior Proposal is Company may request from the Potential Acquiror such information as may be reasonably necessary for the Board of Directors of the Company to act inform themselves as to the material terms of such Acquisition Proposal for the sole purpose of determining whether such Acquisition Proposal constitutes a Superior Proposal, provided, that (w) the -------- Board of Directors of the Company shall have determined, in a manner consistent good faith after being advised by legal and financial advisors, that taking such action with respect to an Acquisition Proposal from such Potential Acquiror is necessary in order for the Board of Directors of the Company to discharge its fiduciary duties under applicable law, (x) upon receipt of such information requested from the Potential Acquiror, neither the Company nor any of its directors, officers or that the failure representatives shall be permitted to provide such confidential engage in any further discussions or non-public information to or negotiate negotiations with any such Potential Acquirer Acquiror that would be reasonably likely otherwise violate paragraph (a) of this Section 8.2, (y) the Company shall comply with paragraph (c) of this Section 8.2 with respect to constitute a breach of its fiduciary duty any such Acquisition Proposal and (z) prior to the Company's stockholdersBoard of Directors of the Company making any determination with respect to any withdrawal of or change to its recommendation of the Offer in connection with or as a result of such Acquisition Proposal, Parent shall have the right for a period of three calendar days to amend the terms of the Offer in response to such Acquisition Proposal and (ii) the Company's Board of Directors of the Company may take and disclose to the Company's stockholders a position contemplated by Rule Rules 14d-9 and 14e-2 under the Exchange ActAct with respect to an Acquisition Proposal. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5.
(c) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company 8.2 or any subsidiary by any person or entity that informs the Board other provision of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposalthis Agreement. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination For purposes of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Superior Proposal" shall mean an Acquisition Transaction"), Proposal that is more favorable than the Offer to the Company's stockholders from a financial point of view and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offeris reasonably likely to be consummated.
Appears in 1 contract
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company AWS shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company AWS shall, and shall use cause each of its reasonable efforts to subsidiaries to, cause any officer, director or employee of the Companyof, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiariesit, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business and properties of AWS or any capital stock of the CompanyAWS, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition TransactionTransactions").
(b) Notwithstanding the provisions of paragraph (a) above, above and without being a breach or violation thereof: (i) the Company AWS may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreement)the Confidentiality Agreement, executed by USA Waste in connection herewith) confidential or non-public information concerning its business, properties or assets to a financially capable corporation, partnership, person or other entity or group (a "Potential AcquirerAcquiror") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer Acquiror if (x) the Board of Directors of AWS in good faith determines that such Acquisition Proposal (if consummated pursuant to its terms) would result in a transaction more favorable to AWS's stockholders than the Company, after consulting with Merger and (y) based upon advice of its outside legal counsel, its Board of Directors determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-non- public information to or negotiate with such Potential Acquirer Acquiror would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, and (ii) the Company's Board of Directors may take and disclose to the Company's its stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5.
(c) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions Acquisition Proposal meeting the conditions of clauses (x) and (y) being referred to herein as a "Parent Acquisition TransactionSuperior Proposal"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business or properties of the Company or any capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreement), confidential or non-public information to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, stockholders and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5.
(c) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public nonpublic information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), ) and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Acquisition Transactions. (a) After the date hereof and ------------------------- prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its all reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, prior to receipt of the Company Shareholders' Approval, in response to an unsolicited bona fide written offer or proposal with respect to a potential or proposed Acquisition Transaction (an "Acquisition Proposal") from a corporation, partnership, person or other entity or group (a "Potential Acquirer") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would reasonably be expected to result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders shareholders than the Merger (any such offer or proposal being referred to as a "Superior Qualifying Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementConfidentiality Agreement (as defined in Section 5.04), ) confidential or non-public information to a financially capable corporationto, partnershipand negotiate with, person or other entity or group (a "such Potential Acquirer") and negotiate , may resolve to accept, or recommend, and, upon termination of this Agreement in accordance with Section 9.1(a)(iv7.01(v) and after payment to Parent of the fee pursuant to Section 7.6(b5.09(b), enter into agreements with such Potential Acquirer if relating to, a Qualifying Proposal which the Company's Board of Directors of the CompanyDirectors, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal faith, has determined is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute be consummated (such Qualifying Proposal being a breach of its fiduciary duty to the Company's stockholders, "Superior Proposal") and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders shareholders a position contemplated by Rule 14e-2 under the Exchange ActAct or otherwise make disclosure required by the federal securities laws. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.55.03.
(c) The Company shall immediately promptly notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made given orally and in writing and shall indicate in reasonable detail the identity of the offeror and the material terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any cause each of its subsidiaries Subsidiaries not to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use cause each of its reasonable efforts to Subsidiaries to, cause any officer, director or employee of the Companyof, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiariesit, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business or properties of the Company or any of its Subsidiaries or any capital stock of the CompanyCompany or any of its Subsidiaries, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition TransactionTransactions").;
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed an Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreement), the Confidentiality Agreement executed by Parent in connection herewith for the benefit of the Company (the "Company Confidentiality Agreement") confidential or non-public information concerning its business, properties or assets to a financially capable any corporation, partnership, person or other entity or group (a "Potential AcquirerAcquiror") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer Acquiror if the based upon advice of its outside legal counsel and financial advisors, its Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure such action to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to Acquiror is necessary for the Company's Board of Directors to act in a manner which is consistent with its fiduciary duties to its stockholders; provided, and (ii) however, that the Company is prohibited from providing to a Potential Acquiror any confidential or non-public information not previously furnished to Parent. Moreover, the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated with respect to a tender offer by Rule 14e-2 a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange ActAct or may make such other disclosures to the Company's stockholders which, as advised by outside counsel, is required under applicable law. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.56.3.
(c) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest Proposal or any request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.Subsidiaries in
Appears in 1 contract
Acquisition Transactions. (a) After the date hereof and prior ------------------------ to the Effective Time or earlier termination of this Agreement, except in accordance with Section 5.03(b), the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its all reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, prior to receipt of the Company Stockholders' Approval, in response to an unsolicited bona fide written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") from a corporation, partnership, person or other entity or group (a "Potential Acquirer") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would reasonably be expected to result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Qualifying Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementthe Confidentiality Agreement (as defined in Section 5.04), ) confidential or non-public information to a financially capable corporationto, partnershipand negotiate with, person or other entity or group (a "such Potential Acquirer") and negotiate , may resolve to accept, or recommend, and, upon termination of this Agreement in accordance with Section 9.1(a)(iv7.01(v) and after payment to Parent of the fee pursuant to Section 7.6(b5.09(b), enter into agreements with such Potential Acquirer if relating to, a Qualifying Proposal which the Company's Board of Directors of the CompanyDirectors, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal faith, has determined is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute be consummated (such Qualifying Proposal being a breach of its fiduciary duty to the Company's stockholders, "Superior Proposal") and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange ActAct or otherwise make disclosure required by the federal securities laws. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.55.03.
(c) The Company shall immediately promptly notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made given orally and in writing and shall indicate in reasonable detail the identity of the offeror and the material terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Sources: Merger Agreement (Raceland Truck Plaza & Casino LLC)
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use cause its reasonable efforts to subsidiaries to, (i) cause any officer, director or employee of the Companyof, or any attorney, accountant, investment banker, financial advisor accountant or other agent retained by it and (ii) use its reasonable best efforts to cause any financial advisor or any of its subsidiariesinvestment banker retained by it, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business and properties of the Company or any capital stock of the Company, whether by merger, purchase of assetsof, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof thereof, other than with respect to the sale of its Bridge Division pursuant to the terms and conditions of the Purchase and Sale Agreement (any such transactions being referred to herein as an "Acquisition TransactionTransactions").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar reasonably acceptable to the confidentiality provisions of this agreement), Company) confidential or non-public information concerning its business, properties or assets to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and or negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if (i) it has in connection therewith complied with subsection (c) of this Section, and (ii) based upon advice of outside legal counsel to the Board of Directors or any special committee of the CompanyBoard formed to review and evaluate the transactions contemplated by this Agreement, after consulting with its outside legal counsel, the Board and/or special committee determines in good faith that consideration of the Superior Proposal there is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or risk that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5its shareholders.
(c) The In the event the Company shall immediately notify Parent after receipt of determine to provide any Acquisition Proposalinformation or negotiate as described in paragraph (b) above, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records shall receive any offer of the Company type referred to in paragraph (b) above, it shall promptly (and in any event, at least prior to providing information or any subsidiary by any person commencing negotiations) inform Parent that information is to be provided, that negotiations are to take place or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or an offer has made, an Acquisition Proposal. Such notice been received and shall furnish to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and person receiving such information or the terms and conditions proponent of such proposaloffer, inquiry or contactif applicable, and, if an offer has been received, a description of the material terms thereof.
(d) After The Company may enter into a definitive agreement for an Acquisition Transaction which meets the date hereof requirements set forth above with a Potential Acquirer with which it is permitted to negotiate pursuant to paragraph (b) above, but only if (i) the Board shall have duly determined that such Acquisition Transaction would yield a higher per share value to the Company's shareholders than the Per Share Amount and that the execution of such definitive agreement is in the best interests of the Company's shareholders, (ii) at least five (5) business days prior to the Effective Time or earlier termination execution of this Agreementsuch definitive agreement, the Company shall have furnished the Parent with a copy of such definitive agreement, and (iii) the Parent shall promptly notify have failed within such five (5) business day period to offer to amend the terms of this Agreement in order that the Merger would yield a value to the Company's shareholders at least equal in the good faith judgment of the Board to the Acquisition Transaction. In the event the Company after receipt enters into a definitive agreement for an Acquisition Transaction, the Board may change its recommendation as contemplated in Section 1.2 hereof.
(e) The Company (i) acknowledges that a breach of any proposal or offer of its covenants contained in this Section 5.3 will result in irreparable harm to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether other party which will not be compensable in money damage and (ii) agrees that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the Parent for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions breach of such proposal or offercovenant.
Appears in 1 contract
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company shall, and shall use its reasonable efforts to cause any officer, director or employee of the Company, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage or provide non-public nonpublic or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business or properties of the Company or any capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, (other than a transaction permitted pursuant to Section 6.1(d)) whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company may, in response to an unsolicited written offer or proposal with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would could result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementAgreement), confidential or non-public nonpublic information to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public nonpublic information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, stockholders and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5.
(c) The Company shall immediately promptly (but in any event within 48 hours) notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public nonpublic information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
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Acquisition Transactions. (a) After the date hereof and prior to the Effective Time Closing or earlier termination of this Agreement, neither PSIL nor the Company shall not, and shall not permit any of its subsidiaries to, Principal will initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and PSIL or the Company Principal shall, and shall use its reasonable efforts to cause any officer, director or employee of the Companyany of PSIL, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiariesthem to, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the businessbusiness or properties of PSIL, properties any partnership interests of PSIL, or capital stock any portion of the CompanyIntellectual Property Rights, whether by merger, purchase of assets, license, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "“Acquisition Transaction"”).
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company PSIL may, in response to an unsolicited written offer or proposal with respect to a potential or proposed an Acquisition Transaction ("“Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"”), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementthe Confidentiality Agreement executed by Parent in connection herewith for the benefit of PSIL (the “Company Confidentiality Agreement”), ) confidential or non-public information concerning its business, properties or assets to a financially capable any corporation, partnership, person or other entity or group (a "“Potential Acquirer"Acquiror”) and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer Acquiror if the Board based upon advice of Directors of the Company, after consulting with its outside legal counselcounsel and financial advisors, the general partner of PSIL, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure such action to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely Acquiror is necessary for the general partner of PSIL, to constitute act in a breach of manner which is consistent with its fiduciary duty duties to the Company's stockholdersits partners; provided, and (ii) the Company's Board of Directors may take and disclose however, that PSIL is prohibited from providing to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange ActPotential Acquiror any confidential or non-public information not previously furnished to Parent. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph Section 5.4 (a) of this Section 6.5).
(c) The Company PSIL shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest Proposal or any request for non-public information relating to the Company or its subsidiaries PSIL in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary PSIL by any person or entity that informs the Board general partner of Directors of the Company or such subsidiary PSIL that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror Potential Acquiror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
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Acquisition Transactions. (a) After the date hereof and prior to the Effective Time Closing or earlier termination of this Agreement, neither PSI nor the Company shall not, and shall not permit any of its subsidiaries to, Stockholder will initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and PSI or the Company Stockholder shall, and shall use its reasonable efforts to cause any officer, director or employee of the Companyany of PSI, or any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiariesthem to, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the businessbusiness or properties of PSI, properties or any capital stock of PSI, or any portion of the CompanyIntellectual Property Rights, whether by merger, purchase of assets, license, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "“Acquisition Transaction"”).
(b) Notwithstanding the provisions of paragraph (a) above, (i) the Company PSI may, in response to an unsolicited written offer or proposal with respect to a potential or proposed an Acquisition Transaction ("“Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"”), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreementthe Confidentiality Agreement executed by Parent in connection herewith for the benefit of PSI (the “Company Confidentiality Agreement”), ) confidential or non-public information concerning its business, properties or assets to a financially capable any corporation, partnership, person or other entity or group (a "“Potential Acquirer"Acquiror”) and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer Acquiror if based upon advice of its outside legal counsel and financial advisors, the Board of Directors of the Company, after consulting with its outside legal counselPSI, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure such action to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to Acquiror is necessary for the Company's stockholders, and (ii) the Company's Board of Directors may take and disclose of PSI, to the Company's stockholders act in a position contemplated by Rule 14e-2 under the Exchange Actmanner which is consistent with its fiduciary duties to its stockholders; provided, however, that PSI is prohibited from providing to a Potential Acquiror any confidential or non-public information not previously furnished to Parent. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph Section 5.5 (a) of this Section 6.5).
(c) The Company PSI shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest Proposal or any request for non-public information relating to the Company or its subsidiaries PSI in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary PSI by any person or entity that informs the Board of Directors of the Company or such subsidiary PSI that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror Potential Acquiror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Acquisition Transactions. (a) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Company shall not, and shall not permit any of its subsidiaries to, initiate, solicit, negotiate, encourage solicit or negotiate or provide nonpublic or confidential information to facilitate, and the Company shall, and shall use its reasonable best efforts to cause any officer, director or employee of the Company, or and any attorney, accountant, investment banker, financial advisor or other agent retained by it or any of its subsidiaries, not to initiate, solicit, negotiate, encourage solicit or negotiate or provide non-public nonpublic or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(b) Notwithstanding the provisions of paragraph (a) aboveabove or any other provision of this Agreement, (i) the Company may, in response to an unsolicited bona fide written offer or proposal with respect to a potential or proposed an Acquisition Transaction (an "Acquisition Proposal") from a corporation, partnership, person or other entity or group (a "Potential Acquirer") which the Company's Board of Directors determines, in good faith and after consultation with and consideration of the views of its independent financial advisoradvisor and legal counsel, would result (if consummated pursuant could reasonably likely lead to its terms) a Superior Proposal, furnish confidential or nonpublic information to, and engage in discussions and negotiate with, such Potential Acquirer. For purposes of this Agreement, "Superior Proposal" means an Acquisition Transaction Proposal which the Company's Board of Directors determines, taking into account all legal, financial, regulatory and other aspects of the proposal, in its good faith judgment and after consultation with and consideration of the views of its independent financial advisor and legal counsel, is (i) reasonably likely to be consummated and (ii) would, if consummated, be more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement substantially similar to the confidentiality provisions of this agreement), confidential or non-public information to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, and (ii) the Company's Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph (b) shall not constitute a violation of paragraph (a) of this Section 6.5Merger.
(c) The Company shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest or request for non-public information relating to the Company or its subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(d) After the date hereof and prior to the Effective Time or earlier termination of this Agreement, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as a "Parent Acquisition Transaction"), and shall indicate in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offer.
Appears in 1 contract
Acquisition Transactions. (ai) After the date hereof and prior to the Merger 2 Effective Time or earlier termination of this Agreement, the Company Sellers shall not, and shall not permit any of its subsidiaries their Subsidiaries to, initiate, solicit, negotiate, encourage or provide confidential information to facilitate, and the Company Sellers shall, and shall use its reasonable efforts to cause each of their Subsidiaries to, cause any officer, director or employee of the Companyof, or any attorney, accountant, 37 investment banker, financial advisor or other agent retained by it or any of its subsidiariesthem, not to initiate, solicit, negotiate, encourage or provide non-public or confidential information to facilitate, any proposal or offer to acquire all or any substantial part of the business, business and properties of either Seller or any of their Subsidiaries or any capital stock of the Companyeither Seller or any of their Subsidiaries, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as an "Acquisition Transaction").
(bii) Notwithstanding the provisions of paragraph subsection (ai) above, (iA) the Company either Seller may, in response to an unsolicited written offer proposal or proposal unsolicited written indication of interest with respect to a potential or proposed Acquisition Transaction ("Acquisition Proposal") which the Company's Board of Directors determines, in good faith and after consultation with its independent financial advisor, would result (if consummated pursuant to its terms) in an Acquisition Transaction more favorable to the Company's stockholders than the Merger (any such offer or proposal being referred to as a "Superior Proposal"), furnish (subject to the execution of a confidentiality agreement and standstill agreement in substantially similar to the confidentiality provisions of this agreement), form executed by Parent) confidential or non-public information to a financially capable corporation, partnership, person or other entity or group (a "Potential Acquirer") and negotiate and, upon termination of this Agreement in accordance with Section 9.1(a)(iv) and after payment to Parent of the fee pursuant to Section 7.6(b), enter agreements with such Potential Acquirer if the Board of Directors of the Company, such Seller after consulting with its outside legal counsel, determines in good faith that consideration of the Superior Proposal is reasonably necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or that the failure to provide such confidential or non-public information to or negotiate with such Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the Company's stockholders, its stockholders and (iiB) the Companysuch Seller's Board of Directors may take and disclose to the Company's its stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this paragraph subsection (bii) shall not constitute a violation of paragraph subsection (ai) of this Section 6.57(c).
(ciii) The Company Sellers shall immediately notify Parent after receipt of any Acquisition Proposal, indication of interest Proposal or any request for non-public nonpublic information relating to the Company a Seller or its subsidiaries Subsidiaries in connection with an Acquisition Proposal or for access to the properties, books or records of the Company a Seller or any subsidiary Subsidiary by any person or entity that informs the Board of Directors of the Company a Seller or such subsidiary Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. Seller shall immediately provide Parent a copy of all information provided to a third party.
(div) After the date hereof and prior Each Party (i) acknowledges that a breach of any of its covenants contained in this Section 7(c) will result in irreparable harm to the Effective Time or earlier termination other Party which will not be compensable in money damages, and (ii) agrees that such covenant shall be specifically enforceable and that specific performance and injunctive relief shall be a remedy properly available to the other Party for a breach of this Agreementsuch covenant. In any event, the Parent shall promptly notify the Company after receipt of any proposal or offer to acquire all or any substantial part of the business, properties or capital stock of Parent, whether by merger, purchase of assets, tender offer or otherwise, whether for cash, securities or any other consideration or combination thereof (any such transactions being referred to herein as if a "Parent Seller enters into an Acquisition Transaction"), and shall indicate it will immediately pay to Parent the sums described in reasonable detail the identity of the offeror or Person and the terms and conditions of such proposal or offerSection 10(b) below.
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