Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Verint Systems Inc)
Exclusivity. The Company agrees that after During the period from the date hereof until the earlier of through the Closing or the earlier termination of this Agreement in accordance with its termsArticle VIII, it the Company shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all each of their respective officersSubsidiaries, directorsAffiliates and Representatives (collectively, managersthe “Subject Parties” and each, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries a “Subject Party”) not to, directly or indirectly: , (a) solicit, initiate, or induce, encourage, knowingly facilitate the making, submission or encourage the submission announcement of any proposals, offers or inquiries from any Person with respect to, or enter into negotiations or any agreement relating to an Acquisition Transaction (an “Acquisition Proposal; ”) or take any action that would reasonably be expected to lead to an Acquisition Proposal, with any Person, in any case other than Purchaser or any of its Affiliates, (b) initiatefurnish any information to any Person in connection with or relating to an Acquisition Proposal, continue or otherwise participate (c) engage in any discussions or negotiations regarding, or furnish to with any Person any information with respect toto an Acquisition Proposal, (d) approve, endorse or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, recommend any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; , or (de) enter into any agreement with respect commitment, understanding, term sheet, letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Proposal; provided, however, that prior to delivery . Without limiting the generality of the Written Consentforegoing, if any violation of or the board taking of directors any action inconsistent with any of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth abovein the preceding sentence by any Subject Party shall be deemed to constitute a breach of this Section 6.14 by the Company. Promptly following the execution and delivery of this Agreement, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed cause the other Subject Parties and their respective directors, managers, officers, employees, agents, consultants, advisors and other representatives to, immediately cease and cause to be terminated any existing discussions with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or Person (other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company than Purchaser or any of its Subsidiaries, other than the TransactionsAffiliates) that relate to any Acquisition Proposal or potential Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Fox Factory Holding Corp), Merger Agreement (Compass Group Diversified Holdings LLC)
Exclusivity. The Company agrees that after Except as expressly permitted by the date hereof until the earlier of the Closing or the termination following provisions of this Agreement in accordance with its termsSection 5(g), it the Company shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries shall not authorize or permit any officer, director or employee of, or any financial advisor, attorney, accountant or other advisor or representative retained by, the Company to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiateencourage, continue or otherwise participate in any discussions or negotiations regardingendorse, or furnish to enter into any Person any information agreement with respect to, or cooperate in any way or take any other action to knowingly to facilitate or encourage facilitate, any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Acquisition Proposal; Proposal (c) grant any waiver or release under any standstill or similar agreement with respect to any class as defined below). Notwithstanding the foregoing, nothing contained in this Letter shall prevent the Board of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors Directors of the Company determines from (i) furnishing information to, entering into discussions or negotiations with, or consummating the sale of assets of WellCare-NY relating to its commercial HMO products, (ii) furnishing information or entering into discussions or negotiations with or consummating any Acquisition Proposal with any person or entity if and only to the extent (A) the Board of Directors of the Company shall have determined in good faith that it such action is required by in the exercise of its fiduciary duties duties, based upon the advice of counsel, or (B) directed to do soso act by New York of Connecticut HMO regulatory authorities, (iii) complying with Rules 14d-9 and 14e-2 promulgated under the board Securities Exchange Act, or (iv) making any disclosures to the Company's shareholders if the Board of directors may respond to any Person making an Acquisition Proposal after the date Directors of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed have determined, after consultation with respect theretooutside counsel, that failure to make such disclosures would be inconsistent with applicable law. For purposes of As used in this Section 7.10Agreement, “"Acquisition Proposal” means " shall mean any inquiry, offer tender or proposal forexchange offer, or indication of interest inproposal, other than a mergerproposal by Purchaser or its Affiliates, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar offer to acquire in any respect to manner an equity interest in the Transactions Company or that otherwise involves any purchase of the business, at least 51% of its subsidiaries or the assets of the Company and or its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionssubsidiaries.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Wellcare Management Group Inc), Stock Purchase Agreement (Wellcare Management Group Inc)
Exclusivity. The Company agrees that after the date hereof until the earlier (a) Neither i3 nor any of the Closing its Subsidiaries or the termination of this Agreement in accordance with its terms, it affiliates shall not, (and it i3 shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective the officers, directors, managers, employees, representatives and agents of i3, each of its Subsidiaries and each affiliate of i3, including investment bankers, attorneys, attorneys and accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to), directly or indirectly: (a) , encourage, solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any or initiate discussions or negotiations regardingwith, or furnish to any Person provide any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Person (other than ACE*COMM and its affiliates and representatives) concerning any Acquisition ProposalProposal (as defined below); (c) grant except that nothing contained in this Section shall prohibit i3 from making such disclosure to i3’s stockholders as, in the good faith judgment of the Board of Directors of i3, after consultation with its outside counsel, is required under applicable Laws. Upon execution of this Agreement, i3 will immediately cease any waiver existing activities, discussions or release under negotiations with any standstill or similar agreement parties conducted heretofore with respect to any class of the Company’s foregoing. Notwithstanding the foregoing, prior to the Closing, i3 may furnish information concerning its business, properties or assets to any Company Subsidiaries’ securitiesother Person pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such Person concerning an Acquisition Proposal if such Person has on an unsolicited basis submitted a bona fide written proposal to the Board of Directors of i3 relating to any such transaction which the Board of Directors determines in good faith is reasonably likely to lead to a Superior Proposal (as defined below); provided, that a Person whom submits an unsolicited bona fide written proposal after the date of this Agreement and who was previously contacted by i3 or K▇▇▇▇▇▇ Bros. or who previously contacted i3, in each case prior to the date of this Agreement, shall be deemed to have been made on an unsolicited basis if there is or was further solicitation of such Person after August 4, 2003. i3 shall promptly, but in any event within two trading days, notify ACE*COMM of the existence of any proposal, discussion, negotiation or inquiry received by i3 or its agents, and i3 shall promptly, but in any event within two trading days, communicate to ACE*COMM the terms of any proposal, discussion, negotiation or inquiry which it may receive (and will promptly provide to ACE*COMM copies of any written materials received by i3 or its agents in connection with such proposal, discussion, negotiation or inquiry) and the identity of the party making such proposal or inquiry or engaging in such discussion or negotiation. i3 shall promptly provide to ACE*COMM any non-public information concerning i3 provided to any other party which was not previously provided to ACE*COMM.
(b) Except as set forth below in this Section, the Board of Directors of i3 shall not (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to ACE*COMM, the Recommendation or the approval by the Board of Directors of this Agreement and the transactions contemplated herein, (ii) approve or recommend or propose to approve or recommend any Acquisition Proposal, or (diii) enter into any agreement with respect to any Acquisition Proposal other than a confidentiality agreement required by Section 6.5(a). Notwithstanding the foregoing, the Board of Directors of i3 may withdraw or modify its Recommendation or approval of this Agreement and the transaction contemplated herein, approve or recommend a Superior Proposal (as defined below), or enter into an agreement with respect to a Superior Proposal; provided, howeverin each case at any time after the fifth trading day following ACE*COMM’s receipt of written notice from i3 advising ACE*COMM that the Board of Directors has received a Superior Proposal which it intends to accept, that prior specifying the material terms and conditions of such Superior Proposal, and identifying the Person making such Superior Proposal.
(c) As used herein, the term “Acquisition Proposal” shall mean any proposal or offer to delivery acquire at least 50% of the Written Consent, if the board of directors i3 Common Stock then outstanding (or of the Company surviving entity in a merger) or substantially all of the assets, business or properties of i3 (whether by way of merger, purchase of capital stock, purchase of assets or otherwise). The term “Superior Proposal” shall mean an Acquisition Proposal which the Board of Directors of i3 determines in good faith that it is (after consulting with its outside counsel and its financial adviser(s)) to be (A) more favorable to i3’s stockholders from a financial point of view than the transactions contemplated by this Agreement, and (B) required by its to be pursued in order to fulfill the Board of Directors’ fiduciary duties to do sounder applicable Laws, in both cases, taking into account the board of directors may respond to any Person making an likelihood that such Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled consummated and other factors the Board of Directors deems to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsbe relevant.
Appears in 2 contracts
Sources: Merger Agreement (Ace Comm Corp), Merger Agreement (Ace Comm Corp)
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiatenone of Acucela or any of its Affiliates, or knowingly facilitate Otsuka, or encourage the submission any of any Acquisition Proposal; (b) initiateits Affiliates, continue shall undertake itself, or grant a license to a Third Party or otherwise participate enable or assist any Third Party, to develop, make, use, offer for sale, sell, import or export any Acucela Core Compound or any pharmaceutical product containing any Acucela Core Compound in the Field, or outside of the Field for indications that may result in off-label use of such Acucela Core Compound or pharmaceutical product, in any discussions or negotiations regardingcountry of the Territory, or furnish to any Person any information with respect toexcept as otherwise expressly permitted under this Agreement. The forgoing notwithstanding, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making case of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement a Change of Control with respect to any class either Party beginning on the date that is * after the effective date of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; providedChange of Control, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery this Section 2.1.2(a) shall not apply to any product owned or controlled by such party. The Company Acquirer or its Affiliates prior to the effective date of the Change of Control (a “Preexisting Product”), provided that, after the effective date of the Change of Control, (i) such Acquirer and its Subsidiaries Affiliates shall promptlynot use the Confidential Information of either Party pertaining to Potential Collaboration Compounds or Potential Collaboration Products or their Manufacture or use in making, but using, offering for sale, selling, importing or exporting such Preexisting Product and (ii) no person who had been an officer, director, employee, consultant, agent or representative of Acucela within * prior to the effective date of the Change of Control shall be permitted to assist the Acquirer in making, using, offering for sale, selling, importing or exporting the Preexisting Product.
(b) From the Effective Date until *, except pursuant to the Collaboration between the Parties under this Agreement, neither Party nor any of its Affiliates shall, alone or in collaboration with a Third Party, conduct any clinical development of any VCM Product in the Field in any case within 48 hours after receiving country of the Territory, or grant a license to a Third Party to conduct, or otherwise assist or authorize a Third Party in conducting, any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms clinical development of any such offer, and VCM Product in the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar Field in any respect to the Transactions or that otherwise involves any purchase country of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsTerritory.
Appears in 2 contracts
Sources: Co Development and Commercialization Agreement (Acucela Inc.), Co Development and Commercialization Agreement (Acucela Inc)
Exclusivity. The Company agrees that after (a) During the period commencing on the Effective Date and ending on the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms(and not extending into any Franchise Wind-Down Period), it Holdings and Licensor shall not, and it shall cause its Subsidiaries and the Licensor Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries (for so long as they remain Licensor Affiliates) not to, directly or indirectly: (a) solicit, initiateuse, or knowingly facilitate grant to any other Person, the right or encourage license to use, anywhere in the submission Territory or in the Option Territory, (i) the Sotheby’s ▇▇▇▇ or the name “Sotheby’s” or any derivative thereof or any confusingly similar ▇▇▇▇ (other than any Licensed ▇▇▇▇), for any Authorized Brokerage Services, Authorized Ancillary Services or any service described in the definition of Excluded Services, other than Timeshare Brokerage Services and sales of Artistically Significant Residences in auction format, which shall not be prohibited by this Section 11.1 or (ii) any Acquisition Proposal; Licensed ▇▇▇▇.
(b) initiateDuring the period commencing on the Effective Date and ending on the date of termination of this Agreement, continue Holdings and Licensor shall not, and Holdings shall cause the Licensor Affiliates (for so long as they remain Licensor Affiliates) not to, sell, dispose or otherwise participate in any discussions or negotiations regarding, or furnish transfer to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition ProposalLicensed ▇▇▇▇; provided, however, that prior the Licensed Marks may, at any time and from time to delivery of the Written Consenttime, if the board of directors of the Company determines in good faith be transferred to an Eligible SPV, provided that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of (i) Licensor’s rights and obligations under this Agreement that was not solicited after the execution are assigned to such Eligible SPV, (ii) such Eligible SPV shall execute an instrument acknowledging its assumption of Licensor’s rights and obligations under this Agreement and will not its agreement to be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company terms and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes conditions of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, Agreement as Licensor and (iii) such Eligible SPV executes and delivers to Licensee a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is pledge agreement substantially similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionspledge agreement executed by Licensor pursuant to Section 10.9(b).
Appears in 2 contracts
Sources: Trademark License Agreement, Trademark License Agreement (Realogy Corp)
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement Executive shall in accordance good faith and consistent with its termshis ability, it shall notexperience and talent perform his duties, and it shall cause its Subsidiaries devote all of his business time and Affiliates and shall use its reasonable best efforts to cause all the performance of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposalsuch duties; provided, however, that prior Executive may, so long as such activities do not interfere or conflict with Executive’s duties hereunder, (a) devote time to delivery his personal investments; (b) serve on the boards of, and otherwise render services to, non-profit, civic, charitable or political businesses or organizations; (c) serve on the boards of for-profit businesses or organizations, so long as (i) any such business or organization is not engaged in activities competitive with Company’s business, (ii) Executive notifies Company in writing of each such board on which Executive is serving and (iii) such business or organization fully indemnifies Executive for his acts and omissions committed while serving as a director thereof; and (iv) continue to provide services to those entities set forth on Exhibit B, attached hereto (the “Approved Entities”) to the extent and limit that Executive previously provided such services, but only to the extent the provision of such services is not in conflict with, in derogation of or in interference with, in any way, Executive’s duties and responsibility to the Company, as shall be determined by Company (all of the Written Consentforegoing clauses (i) through (iv) being, if the board “Approved Activities”). Exhibit C attached to this Agreement shall also contain: (v) holdings of directors at least 5% or more that Executive beneficially owns or controls directly or indirectly in any company whose shares are eligible to trade in any domestic or foreign securities market; (vi) any holding that Executive beneficially owns or controls directly or indirectly in any other company or enterprise; and shall also set forth (vii) all activities, work or consulting not set forth on Exhibit B that Executive performs for others. Executive will promptly notify the Board of the Company determines in good faith that it is required by its fiduciary duties and the Board of Company of any changes or modifications to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptlyforegoing as they occur, but in any case within 48 hours after receiving any Acquisition Proposal from a third partyevent not later than fifteen (15) days thereafter (the foregoing clauses (v) through (vii) being, advise Parent orally the “Noticed Holdings and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect theretoPayments”). For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.Initials: ________ _______
Appears in 2 contracts
Sources: Executive Employment Agreement (Foothills Exploration, Inc.), Executive Employment Agreement (Foothills Exploration, Inc.)
Exclusivity. The (a) During the Pre-Closing Period, the Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it the Company shall cause require each of its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries agents not to, directly or indirectly: , (i) initiate, solicit, encourage or otherwise facilitate any inquiry, proposal, offer or discussion with any party (other than the Buyer) concerning any Acquisition Proposal, (ii) furnish any information concerning the business, properties or assets of the Company or any Subsidiary or the Company Shares to any party (other than the Buyer) or (iii) engage in negotiations or enter into any agreement with any party (other than the Buyer) concerning any such transaction.
(b) Notwithstanding the foregoing, prior to the adoption of this Agreement either at a special meeting of stockholders or pursuant to a written stockholder consent, the Company may, to the extent required by the fiduciary obligations of the Company's Board of Directors, as determined in good faith by the Company's Board of Directors after consultation with outside counsel, in response to a bona fide, unsolicited written Acquisition Proposal from an unaffiliated third party made or received after the date of this Agreement that the Company's Board of Directors determines in good faith after consultation with outside counsel and a nationally recognized independent financial advisor is reasonably likely to lead to a Superior Proposal, in each case that did not result from a breach by the Company of this Section 4.9, and subject to compliance with Section 4.9(c), (x) furnish information with respect to the Company to the person making such Acquisition Proposal and its Advisors pursuant to a customary confidentiality agreement not less restrictive of the other party than the NDA and (y) participate in discussions or negotiations (including solicitation of a revised Acquisition Proposal) with such person and its Advisors regarding any Acquisition Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 4.9 by any Advisor of the Company or any of its Subsidiaries, whether or not such person is purporting to act on behalf of the Company or otherwise, shall be deemed to be a material breach of this Section 4.9 by the Company.
(c) The Company shall promptly, and in any event within one business day, notify any party with which discussions or negotiations of the nature described in paragraph (a) solicit, initiate, above were pending that the Company is terminating such discussions or knowingly facilitate negotiations. If the Company receives any Acquisition Proposal or encourage the submission of any request for information in connection with any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to of any Person any information inquiry with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class , the Company shall, within two business days after such receipt, notify the Buyer of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any such Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereofrequest or inquiry, including the identity of such the other party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any , request or inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Akamai Technologies Inc), Merger Agreement (Akamai Technologies Inc)
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termsshall, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of its Affiliates and its and their respective officersRepresentatives to immediately cease (a) any and all discussions or negotiations with any Person (other than Parent and its Affiliates and its and their respective Representatives) regarding a Competing Transaction, directors(b) furnishing to any Person (other than Parent and its Affiliates and its and their respective Representatives) any information with respect to a Competing Transaction and (c) cooperating with, managersassisting in, employeesparticipating in, investment bankersfacilitating or encouraging a Competing Transaction. Until such time, attorneysif any, accountantsas this Agreement is terminated pursuant to the terms hereof, agents, advisors, representatives and controlled Affiliates of the Company agrees that it shall not, and shall use its Subsidiaries reasonable best efforts to cause its Affiliates and use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly: , (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (bi) initiate, continue solicit, knowingly encourage or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of an offer or proposal regarding any proposal that constitutesCompeting Transaction, (ii) engage in any negotiations concerning, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement (other than an agreement with its Subsidiaries or its or their respective Representatives) regarding a Competing Transaction or otherwise knowingly facilitate a Competing Transaction or (iii) except as described in the immediately following sentence, file any amendments to or make any other filing with the Commission with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereofRegistration Statement, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed public or publicly available correspondence with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution request that the Registration Statement (or other transaction that is similar in the prospectus contained therein) be declared effective by the Commission or make any public announcements with respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock an initial public offering of the Company or any of its Subsidiaries, notwithstanding the fact that any such failure to file or other than inaction may result in the TransactionsRegistration Statement (or the prospectus contained therein) being deemed stale by the Commission. Promptly after the date of this Agreement, the Company shall file a Registration Withdrawal Request on Form RW with the Commission with respect to the Registration Statement and, if deemed advisable by the Company, make a filing with the Commission on Form 8-K and other appropriate filings with the Commission in connection therewith.
Appears in 2 contracts
Sources: Merger Agreement (LVB Acquisition, Inc.), Merger Agreement (Zimmer Holdings Inc)
Exclusivity. The Company agrees that after (a) During the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termsInterim Period, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates each of the Company and the Cision Owner shall not take, nor shall it permit any of its Subsidiaries not toAffiliates or Representatives to take, whether directly or indirectly: (a) indirectly any action to solicit, initiate, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate engage in any discussions or negotiations regardingwith, or furnish to enter into any Person any information with respect toagreement with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutesencourage, or could be expected to lead provide information to, any Acquisition Proposal; Person (cother than Acquiror, Holdings, Merger Sub and/or any of their Affiliates) grant concerning any waiver or release under purchase of any standstill or similar agreement with respect to any class of the Company’s equity securities or the issuance and sale of any securities of, or membership interests in, the Company or its Subsidiaries (other than any purchases of equity securities by the Company from employees of the Company or its Subsidiaries) or any merger or sale of substantial assets involving the Company or its Subsidiaries’ securities; , other than immaterial assets or assets sold in the ordinary course of business (d) enter into any agreement with respect to any each such acquisition transaction, an “Acquisition ProposalTransaction”); provided, however, that Acquiror, Holdings and Merger Sub hereby acknowledge that prior to delivery the date of this Agreement, the Company has provided information relating to the Company and its Subsidiaries and has afforded access to, and engaged in discussions with, other Persons in connection with a proposed Acquisition Transaction and that such information, access and discussions could reasonably enable another Person to form a basis for a proposal to engage in an Acquisition Transaction without any breach by the Company of this Section 10.03(a); provided, further, however, that the foregoing acknowledgement shall not in any way diminish the obligations of the Written ConsentCompany, if the board Cision Owner, and their respective Affiliates and Representatives pursuant to this sentence and, for the avoidance of directors of doubt, the Company determines shall not enter into any further discussions or negotiations or provide any further information in good faith that it is required by its fiduciary duties to do sorespect of, or enter into any agreement or arrangement with respect to, any such proposal. Notwithstanding the foregoing, the board of directors Company may respond to any Person making unsolicited proposal regarding an Acquisition Proposal after Transaction by indicating only that the date of this Agreement that was not solicited after the execution of this Agreement Company is subject to an exclusivity agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled is unable to receive provide any information provided related to such party simultaneously with delivery to any such party. The the Company and its Subsidiaries shall promptly, but or entertain any proposals or offers or engage in any case within 48 hours after receiving any negotiations or discussions concerning an Acquisition Proposal from a third partyTransaction for as long as that exclusivity agreement remains in effect and, advise Parent orally and in writing thereofsuch event, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect theretonotify Acquiror of such facts and circumstances. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets Each of the Company and the Cision Owner shall, and each shall cause its Subsidiariesrespective Affiliates and Representatives to, taken as a wholeimmediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction.
(b) During the majority Interim Period, none of the capital stock of the Company Acquiror, Holdings or Merger Sub shall take, nor shall they permit any of its Subsidiariestheir respective Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the TransactionsCompany, the Cision Owner and/or any of their Affiliates), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination (a “Business Combination Proposal”) other than with the Company, the Cision Owner and their respective Affiliates and Representatives. Each of Acquiror, Holdings and Merger Sub shall, and each shall cause its respective Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Capitol Acquisition Corp. III)
Exclusivity. The Company agrees that From and after the date hereof and unless and until the earlier of the Closing or the termination of this Agreement is terminated as provided in accordance with its termsSection 12, it the Seller shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all not knowingly permit any of their respective the Seller's Affiliates, officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not toagents or representatives, directly or indirectly: (a) , to encourage, solicit, initiate, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regardingwith, provide any information to, receive any proposals or offers from, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to with, any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereofeach case other than the Purchaser and/or its Affiliates, including that involves the identity sale, joint venture or the other disposition of such party and all or any portion of the material terms Business or Acquired Assets (other than sales of inventory in the Ordinary Course of Business) or any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution recapitalization or other transaction business combination of any kind which would effect, if consummated, the transactions contemplated hereby. Seller represents that it is similar not now and it has not been during at least the two-week period preceding the date hereof, engaged in any respect to the Transactions such discussions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiariesnegotiations, other than discussions terminating prior negotiations. Notwithstanding the Transactionsforegoing, in the event Seller should hereafter receive an unsolicited offer for the purchase of assets including some or all of the Acquired Assets, which in fulfillment of its fiduciary responsibilities as a public company it would otherwise consider, Seller shall immediately notify the Purchaser by providing Purchaser with a copy of the unsolicited offer. If Purchaser does not agree in writing to substantially match the terms of said unsolicited offer within ten (10) days of its receipt, Seller shall be free to terminate this Agreement by notice thereof given to Purchaser and to thereafter negotiate and execute said offer and related agreements without restriction provided however that upon the closing of the transaction described in such unsolicited offer (or any transaction similar thereto) Seller shall pay to Purchaser $250,000 in consideration of, among other things, the expenses which Purchaser has incurred and the time and energy which Purchaser has invested in the transaction contemplated hereby.
(i) Notices to Employees, Customers and Vendors. The Seller shall deliver such notices to such of its employees when and as reasonably requested by Purchaser and when and as required of the Seller by any applicable Laws, including without limitation the WARN Act, or by any agreements (including any notices required to be given to any union, or similar representative body). The Seller shall deliver such notices to customers and vendors of the Seller, if and as reasonably requested by the Purchaser, in such form and substance as reasonably requested by the Purchaser, informing such customers and/or vendors of the sale of the Business and the Acquired Assets as contemplated hereunder.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Reptron Electronics Inc), Asset Purchase Agreement (Jaco Electronics Inc)
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it (a) Seller shall not, and it shall cause not authorize or permit any of its Subsidiaries and Affiliates and shall use or any of its reasonable best efforts to cause all of or their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not Representatives to, directly or indirectly: , (ai) encourage, solicit, initiate, or knowingly facilitate or encourage the submission of any continue inquiries regarding an Acquisition Proposal; (bii) initiate, continue or otherwise participate in any enter into discussions or negotiations regardingwith, or furnish to provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any information agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to be terminated, and shall cause its Affiliates and all of its and their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations with any Persons conducted heretofore with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, an Acquisition Proposal. For purposes hereof, "Acquisition Proposal" means any inquiry, proposal or offer from any Person (other than Buyer or any of its Affiliates) relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Target Business or the Purchased Assets.
(b) In addition to the other obligations under this Section 6.06, Seller shall promptly (and in any event within three Business Days after receipt thereof by Seller or its Representatives) advise Buyer orally and in writing of any Acquisition Proposal; (c) grant , any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement request for information with respect to any Acquisition Proposal; provided, however, that prior or any inquiry with respect to delivery of the Written Consent, if the board of directors of the Company determines or which could reasonably be expected to result in good faith that it is required by its fiduciary duties to do soan Acquisition Proposal, the board material terms and conditions of directors may respond to any Person making an such request, Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement or inquiry, and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of the Person making the same.
(c) Seller agrees that the rights and remedies for noncompliance with this Section 6.06 shall include having such party provision specifically enforced by any court having equity jurisdiction, it being acknowledged and the material terms of agreed that any such offer, breach or threatened breach shall cause irreparable injury to Buyer and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect money damages would not provide an adequate remedy to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsBuyer.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Micronet Enertec Technologies, Inc.), Asset Purchase Agreement (Micronet Enertec Technologies, Inc.)
Exclusivity. The Company agrees that after (a) Between the date hereof until of this Agreement and the earlier of the Closing or and the termination of this Agreement in accordance with its termsArticle VII, it Parent shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: , take any action to (ai) solicit, initiate, or knowingly facilitate or knowingly encourage the submission of any Acquisition Proposal; , (bii) initiateenter into, continue or otherwise participate engage in any discussions or negotiations regarding, or furnish with any third party with respect to any Person Acquisition Proposal, (iii) provide information to any third party in connection with an Acquisition Proposal or (iv) enter into any agreement in principle, letter of intent, memorandum of understanding, merger agreement or any other business combination agreement with respect to any Acquisition Proposal.
(b) Parent shall promptly, and in any event within one (1) Business Day of the date of this Agreement:
(i) terminate access of any third party to any data room (virtual or actual) containing any confidential information with respect to the Business;
(ii) cease and cause to be terminated, and shall cause its Subsidiaries and Representatives to cease and cause to be terminated, all existing activities, discussions, negotiations and communications, if any, with any third party with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could which would reasonably be expected to lead to, any Acquisition Proposal; and
(iii) request the return or destruction of any confidential information provided to any third party in connection with an Acquisition Proposal (subject in each case to the terms of any applicable confidentiality agreement).
(c) grant Promptly upon receipt of an unsolicited Acquisition Proposal, Parent shall notify Buyer thereof, which notice shall include a written summary of the material terms of such proposal and the identity of the party that submitted such proposal. Parent may respond to any waiver or release under any standstill or similar unsolicited Acquisition Proposal only by indicating that Parent has entered into a binding definitive agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect Acquisition and is unable to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive provide any information provided related to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsSubsidiaries or entertain any proposals or offers or engage in any discussions or negotiations with respect to an Acquisition Proposal.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Endeavor Group Holdings, Inc.), Equity Purchase Agreement (Scientific Games Corp)
Exclusivity. The Company agrees that (a) From and after the date hereof of this Agreement until the earlier of the Closing Effective Time or the earlier termination of this Agreement in accordance with pursuant to its terms, it shall the Company and the Shareholder will not, nor will the Company or the Shareholder authorize or permit (to the extent within their power and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all authority) any of their respective the Company’s directors, officers, directorsAffiliates, managersemployees or any investment banker, employees, investment bankers, attorneys, accountants, agents, advisorsadvisor, representatives and controlled Affiliates or other agent of the Company or the Shareholder to (and its Subsidiaries they shall instruct each such representative or other agent not to), directly or indirectly: (ai) solicit, initiateinitiate or induce the making, submission or knowingly facilitate or encourage the submission announcement of any Acquisition Proposal; , (bii) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Acquisition Proposal; , (ciii) grant approve, endorse or recommend any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; Acquisition Proposal, or (div) enter into any agreement letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Proposal. The Company will immediately cease any and all existing activities, discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal, and promptly after the date hereof request the prompt return or destruction of all confidential information previously furnished to such Persons within the last 12 months for the purpose of evaluating a possible Acquisition Proposal and require such return or destruction to the extent the Company has the right to do so under any applicable confidentiality agreement with such Person. The foregoing notwithstanding, the Company, the Shareholder and the Company’s directors, officers, Affiliates, employees, investment bankers, advisors, representatives and other agents may discuss any Acquisition Proposal with Buyer and with each other.
(b) In addition to the obligations of the Company set forth in Section 7.5(a), the Company shall, as promptly as practicable, advise Buyer of (i) any Acquisition Proposal received by the Company after the date hereof, (ii) the material terms and conditions of such Acquisition Proposal, and (iii) the identity of the Person or group making any such Acquisition Proposal. The Company shall keep Buyer fully informed of the status and details of any such Acquisition Proposal and provide to Buyer as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent by or provided to the Company or their respective Affiliates (or their respective representatives or other agents) in connection with any such Acquisition Proposal.
(c) In consideration for the foregoing covenants set forth in Section 7.5, Buyer shall pay to the Shareholder and the Company Payees, in accordance with the allocation set forth in the Merger Consideration Payment Schedule, a cash fee equal to $25,000 per day beginning on the 8th day following the date of this Agreement and continuing through the End Date (the “Closing Delay Fee”); provided, however, that prior notwithstanding anything herein to delivery the contrary, the Closing Delay Fee shall be payable in addition to the Closing Cash Consideration and the Buyer’s obligations to pay the Closing Delay Fee shall survive the Closing; provided, further, that the Shareholder and the Company Payees shall not be entitled to the Closing Delay Fee for an applicable date if (i) all of the Written Consentconditions to the Company’s and the Shareholder’s obligations to consummate the Closing under ARTICLE XI have been satisfied as of such date (other than any such conditions which by their nature are to be satisfied by the Closing Date) or (ii) the Company’s, if the board of directors of Shareholder’s or the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date Payees’ breach of this Agreement that was not solicited after is the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase cause of the business, at least 51% failure of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsClosing to occur by such date.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Organogenesis Holdings Inc.)
Exclusivity. The Company agrees that after (a) During the date hereof until the earlier of the Closing or the termination term of this Agreement in accordance with Agreement, neither Seller nor any of its termsAffiliates shall, nor shall it shall notauthorize or permit any of its officers, and directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all or any of their respective officersAffiliates to initiate, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiateencourage (including by way of furnishing information), or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage facilitate, any inquiries or the making of any proposal that which constitutes, or could may reasonably be expected to lead to, any Acquisition Proposal (as defined in Section 10.6 hereof), or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain an Acquisition Proposal, or agree to or endorse any Acquisition Proposal, and Seller shall notify Purchaser orally (within one business day) and in writing (as promptly as practicable), in reasonable detail, as to any inquiries and proposals which it or any of its Affiliates or any of their respective representatives or agents may receive; provided, however, that (ci) grant any waiver Seller and its Affiliates may furnish or release under any standstill cause to be furnished confidential and non-public information concerning Seller and its businesses, properties or assets to a third party (subject to execution by such third party of a confidentiality agreement containing confidentiality provisions substantially similar to those of the letter agreement entered into between FBR Capital Markets & Co., as Seller’s agent, and Purchaser dated ▇▇▇▇▇ ▇, ▇▇▇▇), (▇▇) following the execution of such a confidentiality agreement, Seller may engage in discussions or negotiations with a third party executing such an agreement, (iii) following receipt of an Acquisition Proposal, Seller may take and disclose to its shareholders a position with respect to such Acquisition Proposal, including, if such Acquisition Proposal is a tender offer, Seller’s Board of Directors may take and disclose to its shareholders a position contemplated by Rule 14e-2 under the Securities Exchange Act of 1934, and/or (iv) following receipt of an Acquisition Proposal, Seller’s Board of Directors may withdraw or modify its recommendation to shareholders, but in each case referred to in the foregoing clauses (i) through (iv) only to the extent that Seller’s Board of Directors shall conclude in good faith (on the basis of advice from outside counsel) that such action is required in order for Seller’s Board of Directors to satisfy their respective fiduciary obligations under applicable law; provided, further, that Seller’s Board of Directors shall not take any class of the Companyforegoing actions referred to in clauses (i) through (iv) until after reasonable notice to and consultation with Purchaser with respect to such action and that Seller’s Board of Directors shall continue to consult with Purchaser after taking such action and, in addition, if Seller’s Board of Directors receives an Acquisition Proposal or any Company Subsidiaries’ securities; request for confidential and non-public information or (d) enter into for access to the properties, books or records of Seller for the purpose of making, or in connection with, an Acquisition Proposal, then Seller shall promptly inform Purchaser as provided above of the terms and conditions of such proposal or request and the identity of the person making it. Seller will immediately cease and cause to be terminated any agreement existing activities, discussions or negotiations with any parties conducted prior to the date of this Agreement with respect to any Acquisition Proposal; provided.
(b) Without limiting the foregoing, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board understood that any violation of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth abovein the first sentence of Section 5.4(a) by any employee, in which caseofficer or director or authorized employee, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity agent or representative of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company Seller or any of its SubsidiariesAffiliates (including, without limitation, any investment banker, financial advisor, attorney or accountant or other than the Transactionsrepresentative retained by Seller or any of its Affiliates) or otherwise shall be deemed to be a breach of Section 5.4 by Seller.
Appears in 2 contracts
Sources: Branch Purchase and Assumption Agreement (Green Bancorp, Inc.), Branch Purchase and Assumption Agreement (Green Bancorp, Inc.)
Exclusivity. The Company agrees that after Between the date hereof until of this Agreement and the earlier to occur of the Closing or the termination of this Agreement in accordance with its termspursuant to Article 8 and the Closing Date, it Seller shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: indirectly (including indirectly through its Representatives), (a) solicit, initiate, knowingly encourage or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way induce or take any other action to in any way knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, constitutes or could would reasonably be expected to lead to (including by way of furnishing information or assistance) a Competing Transaction, (b) engage in or otherwise participate in any negotiations or discussions with any Person (other than any Governmental Authority) concerning, provide any information to, or cooperate in any way with, any Person relating to, any Acquisition Proposal; Competing Transaction or (c) grant agree to, approve or recommend any waiver contract (written or release under oral), agreement in principle, letter of intent, term sheet or other similar instrument relating to any standstill Competing Transaction. Seller shall immediately cease and cause to be terminated any existing activities, discussions or similar agreement negotiations with any parties conducted heretofore with respect to any class of the Company’s foregoing (other than any such discussions with any Governmental Authority) and shall use its Commercially Reasonable Efforts to cause any such party in possession of confidential information about Seller that was furnished by or on behalf of Seller in connection with the sale process conducted by Seller prior to the date hereof with respect to the Purchased Assets to return or destroy all such information. Seller acknowledges and agrees that any remedy at law for breach of the foregoing covenant may be inadequate and, in addition to any other relief which may be available, Purchaser shall be entitled to seek temporary and permanent injunctive relief without the necessity of proving actual damages, posting bond or providing surety, and without regard to the adequacy of any remedy at Law. Seller represents and warrants that, as of the date hereof, (x) it is not engaged in discussions or negotiations with any party other than Purchaser or any Company Subsidiaries’ securities; or (d) enter into any agreement Governmental Authority with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consentforegoing, if the board of directors of the Company determines in good faith that it (y) there is required no stand-by its fiduciary duties to do soor back-up contract (written or oral), the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution agreement or other transaction that is similar in any understanding with respect to the Transactions or that otherwise involves any purchase sale of the businessPurchased Assets, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, (z) it has terminated all discussions with third parties (other than the Transactionsany Governmental Authorities) with respect to such proposed matters.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Molina Healthcare Inc), Asset Purchase Agreement (Molina Healthcare Inc)
Exclusivity. The Company agrees that after With the exception of the Potential Transaction, during the period beginning on the date hereof until and ending at the earlier of (x) 11:59pm Pacific Time on June 23, 2016, or (y) notification by Cavium to QLogic pursuant to Section 4 of the Closing NDA that Cavium has determined not to proceed with the Potential Transaction, QLogic nor any of its Representatives (as defined below) will, directly or indirectly, (i) agree to, solicit, initiate, or knowingly encourage any expression of interest, offer, proposal or inquiry from any party relating to any potential acquisition, sale, merger or consolidation, or tender offer or exchange offer with respect to, QLogic or any of its subsidiaries, or any acquisition or other transfer of any material portion of the termination business, assets or equity interests of this Agreement QLogic and its subsidiaries, taken as a whole (an “Acquisition Proposal”), (ii) participate in accordance any negotiations regarding, or furnish any person any information or access to the books and records of QLogic or any of its subsidiaries in connection with, an Acquisition Proposal, or (iii) release any third party from, or waive any provision of, any confidentiality, non-solicitation or standstill agreement to which QLogic or any of its direct or indirect subsidiaries is a party in connection with its terms, it shall notany Acquisition Proposal. QLogic will, and it shall cause its Subsidiaries and Affiliates and shall will use its reasonable best efforts to cause its Representatives to, immediately cease and cause to be terminated all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company contacts or negotiations with parties other than Cavium and its Subsidiaries not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of Representatives related to any Acquisition Proposal; , and if QLogic or any of its Representatives receives an expression of interest, offer, proposal or inquiry relating to an Acquisition Proposal, neither QLogic nor its Representatives shall respond (b) initiateother than to acknowledge receipt and indicate that QLogic may not further respond), continue and QLogic shall promptly provide Cavium with oral and written notice of such expression of interest, offer, proposal or otherwise participate inquiry, which written notice shall, except to the extent restricted by an agreement existing on the date hereof with such person, include the identity of the third party making such expression of interest, offer, proposal or inquiry, a copy of such expression of interest, offer, proposal or inquiry, if in any discussions or negotiations regardingwriting, or furnish to any Person any information with respect toa summary of the material terms and conditions of such expression of interest, offer, proposal or cooperate inquiry, if not in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constituteswriting. The term “Representatives” shall mean, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class entity, any affiliates of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; providedsuch entity, howeverincluding, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do sowithout limitation, the board direct and indirect subsidiaries of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement such entity, and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company entity’s and its Subsidiaries shall promptlyaffiliates’ directors, but in any case within 48 hours after receiving any Acquisition Proposal from a third partyofficers, advise Parent orally employees, representatives (including, without limitation, financial advisors, attorneys and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer accountants) or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsagents.
Appears in 2 contracts
Sources: Exclusivity Agreement (Qlogic Corp), Exclusivity Agreement (Cavium, Inc.)
Exclusivity. The Company Managing Member, itself and on behalf of the Company, hereby agrees that after the date hereof until the earlier Section 12.4 of the Closing or LLC Agreement shall not apply to any of your Affiliates (other than your Subsidiaries) from which you are separated by a reasonable and customary information barrier and the termination voting and investment powers of this Agreement in accordance which are exercised independently from you with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts respect to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; Investment. (b) initiateNotwithstanding Section 12.4 of the LLC Agreement, continue or otherwise participate in any discussions or negotiations regarding, or furnish but subject to any Person applicable restrictions under the Restructuring Proposal, you and your Subsidiaries shall be permitted to invest in voting common shares of GGP following the effective date of the Plan; provided that your holdings of such common shares, together with any information with respect toholdings of your Subsidiaries (including any indirect purchase or disposition, for example, by means of swaps or cooperate in any way other derivatives), shall not exceed three percent (3%) of the aggregate outstanding amount of such common shares; provided, further, that you agree (i) not to purchase or take any other action knowingly to facilitate or encourage any inquiries or the making dispose of any proposal that constitutessuch common shares if, at the time of such purchase or could be expected disposition, the Person making the applicable investment decision is in possession of any material non-public information relating to lead to, any Acquisition ProposalGGP on which it is prohibited from trading under the Exchange Act; (cii) grant not to purchase or dispose of any waiver such common shares unless you have determined that such purchase or release disposition would not result in a disgorgement of profits under any standstill or similar agreement Section 16(b) of the Exchange Act with respect to any class Member other than you or your Affiliates; (iii) to notify the Managing Member of such purchase or disposition (including any indirect purchase or disposition, for example, by means of swaps or other derivatives), as applicable, and the amount and timing thereof, immediately after such purchase or disposition, and in any event on the date thereof; (iv) not to sell “short” any such common shares, unless you shall have determined that such “short” sale is permitted under Section 16(c) of the Exchange Act; (v) to reimburse the Company for any expenses incurred by the Company or the Managing Member on behalf of the Company’s or , in connection with any amendment to any filings made on behalf of the Company Subsidiaries’ securitiespursuant to Section 13 of the Exchange Act; or (dvi) enter into not to engage in any agreement acquisition that would require compliance with Regulation 14E of the Exchange Act with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company GGP or any of its Subsidiaries, other than Affiliates; and (vii) to vote any common shares held by you and your Affiliates at all times in the Transactionssame manner and in conformance with how the Company votes its common shares in GGP. References in this paragraph 23 to any purchase or disposition of common shares of GGP shall be to the purchase or disposition on a date or within a time period specified by the relevant party.
Appears in 1 contract
Sources: Stable Letter Agreement
Exclusivity. The Company agrees that (a) From and after the date hereof of this Agreement until the earlier of the Closing Effective Time or the termination of this Agreement in accordance with its termspursuant to Article 8, it shall the Company will not, and nor will it shall cause authorize or permit any of its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managersAffiliates or employees or any investment banker, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not attorney or other advisor or representative retained by it to, directly or indirectly: , (ai) solicit, initiateinitiate or induce the making, submission or knowingly facilitate or encourage the submission announcement of any Acquisition Proposal; , (bii) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person person any non-public information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Acquisition Proposal; , (ciii) grant engage in discussions with any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement person with respect to any Acquisition Proposal, except as to disclose the existence of these provisions, (iv) endorse or recommend any Acquisition Proposal, provided that, notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall prevent the Company Board from recommending a Superior Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Superior Proposal; provided, however, that prior to delivery the adoption of this Agreement by the Written Consentrequired Company Stockholder vote, if the board of directors of this Section 6.5(a) shall not prohibit the Company from furnishing non-public information regarding the Company to, entering into a confidentiality agreement with or entering into discussions with, any person or group in response to a Superior Proposal or any offer or proposal that the Company Board reasonably determines in good faith is reasonably likely to lead to a Superior Proposal submitted by such person or group (and not withdrawn) or the Company Board from recommending that it is required by its fiduciary duties to do so, the board Company Stockholders approve a Superior Proposal if (1) neither the Company nor any representative of directors may respond to the Company shall have violated any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth in this Section 6.5, including obligations under clause (i) above, (2) the Company Board concludes in which casegood faith, Parent will be entitled after consultation with its outside legal counsel, that such action is required in order for the Company Board to receive any information provided comply with its fiduciary obligations to such party simultaneously with delivery the Company Stockholders under Delaware Law, (3) prior to furnishing any such party. The non-public information to, or entering into discussions with, such person or group, the Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise gives Parent orally and in writing thereof, including written notice of the identity of such party person or group and of the material terms of any Company’s intention to furnish non-public information to, or enter into discussions with, such offer, person or group and the Company shall keep Parent fully informed with respect thereto. For purposes receives from such person or group an executed confidentiality agreement containing customary limitations on the use and disclosure of this Section 7.10, “Acquisition Proposal” means any inquiry, offer all non-public written and oral information furnished to such person or proposal for, group by or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets on behalf of the Company and (4) contemporaneously with furnishing any such non-public information to such person or group, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously furnished by the Company to Parent); provided, further, that the Company shall not consummate any transaction(s) contemplated by any Superior Proposal unless and until the Company has first terminated this Agreement pursuant to Section 8.1(g) hereof. The Company will, and will cause its Subsidiariesofficers, taken as a wholedirectors, affiliates, employees, investment bankers, attorneys and other advisors and representatives to, immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the majority foregoing, it is understood that any violation of the capital stock restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any investment banker, attorney or other advisor or representative of its Subsidiariesthe Company shall be deemed to be a breach of this Section 6.5 by the Company.
(b) In addition to the obligations of the Company set forth in Section 6.5(a), the Company as promptly as practicable shall advise Parent in writing of any Acquisition Proposal or of any request for non-public information or other than inquiry which the TransactionsCompany reasonably believes could lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal (to the extent known) and the identity of the person or group making any such request, inquiry or Acquisition Proposal. The Company agrees to keep Parent informed on a current basis of the status and details (including any material amendments or proposed amendments) of any such request, inquiry or Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (OccuLogix, Inc.)
Exclusivity. The Company agrees that (a) From and after the date hereof until through and including the Closing Date or the earlier of the Closing or the termination of this Agreement in accordance with its termsAgreement, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Companies will not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any proposal or offer from any Person relating to the acquisition of all or substantially all of the capital stock or assets of either Company, including any acquisition structured as a merger, consolidation, or share exchange (an "Acquisition Proposal; (b) initiate"), continue or otherwise and will cease negotiations with respect to any Acquisition Proposals. Notwithstanding the foregoing, Barrier and its directors and officers will remain free to participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, assist or cooperate participate in, or facilitate in any way other manner any effort or attempt by any Person to do or seek any of the foregoing to the extent Barrier's Board of Directors concludes in good faith, after having taken into account the advice of its outside legal counsel, that the fiduciary duties of the directors or officers, as applicable, to the shareholders of Barrier require them to do so; provided, that, the directors and officers shall not take any other action knowingly of the foregoing actions without having given at least three (3) Business Days' advance written notice to facilitate Parent. In addition, if any director or encourage officer receives an Acquisition Proposal, Barrier shall promptly inform Parent in writing of the material terms of such proposal and the identity of the Person (or group) making it.
(b) It is understood that any inquiries violation of the restrictions set forth in this Section 5.7 by any director or officer of the making of Companies or by any proposal that constitutesinvestment banker, financial adviser, attorney, accountant, or could other representative of the Companies shall be expected deemed to lead to, any Acquisition Proposal; be a breach of this Section 5.7 by the Companies.
(c) grant any waiver or release under any standstill or similar agreement with respect to any class of In the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, event that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of shall have been made known to Barrier or shall have been made directly to its shareholders generally or any Person shall have announced an intention (whether or not conditional) to make an Acquisition Proposal, and thereafter this Agreement is terminated by Barrier for any reason and an Acquisition Proposal is consummated within eighteen (18) months of such termination, then Barrier shall pay to Parent, upon the consummation of such Acquisition Proposal, a termination fee equal to $1,000,000 in cash; provided that was this Section 5.7(c) shall not solicited after apply if this Agreement is terminated pursuant to Section 7.1(d) following a vote of the execution Shareholders to approve this Agreement and the Merger in which each director of Barrier who is a Shareholder votes his or her Barrier Shares (and any Barrier Shares owned by entities controlled by such director) in favor of this Agreement and will the Merger but the Requisite Shareholder Approval is not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsobtained.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it Each Seller shall not, and it shall use its commercially reasonable efforts to cause its Subsidiaries and Affiliates and shall use each of its reasonable best efforts to cause all of their respective officers, directors, managersofficers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries agents not to, directly or indirectly: , encourage, solicit or initiate any proposal or offer from any person or entity (other than the Buyer or an affiliate, associate, representative or agent of the Buyer) concerning any merger, consolidation, sale of material assets, tender offer, recapitalization, accumulation of shares of stock of any Seller, proxy solicitation or other business combination involving Seller or any Subsidiary or any division of any Seller or any Subsidiary or any of their respective businesses relating to the Acquired Assets and the Assigned Contracts and Leases (an "Alternative Proposal"), or (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect agree to, or cooperate in any way endorse or take any other action knowingly to facilitate an Alternative Proposal unless such Alternative Proposal has been approved by the Bankruptcy Court pursuant to the Section 363 sale process contemplated by this Agreement or encourage (b) provide any inquiries non-public information concerning the business, properties or the making assets of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect Seller to any class person or entity (other than the Buyer); PROVIDED, HOWEVER, that the Sellers shall not be prohibited from giving notice or providing information, including non-public information, to any persons who may seek to make a proposal as part of the Company’s or any Company Subsidiaries’ securitiesSection 363 sale process contemplated by this Agreement (the "Exclusivity Provision"); or (d) enter into any agreement with respect to any Acquisition Proposal; providedPROVIDED, howeverHOWEVER, that prior to delivery of notwithstanding the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do soforegoing, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will Sellers shall be entitled to receive give such notice of whatever buyer protections and/or bidding procedures order as the Bankruptcy Court requires to respond to and discuss any information provided Alternative Proposal, to such party simultaneously with delivery to provide information, including due diligence materials and negotiate and discuss any such partyAlternative Proposal. The Company Sellers shall immediately notify the Buyer of, and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from disclose to the Buyer a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms reasonably detailed description of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means inquiries received by any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company Seller or any of its Subsidiariesagents or representatives (including, other than without limitation, the Transactionsdate of such inquiry, the identity of the inquirer and the status of such inquiry) with respect to the acquisition of any of the Acquired Assets and the Sellers shall provide the Buyer with copies of any written proposals and a description of any verbal proposals which are received by Sellers or any of its agents or representatives. Nothing in this Section 4.7 shall require the divulgence of the identity of any third party making an Alternative Proposal in violation of any Confidential Agreement with such third party.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it Exicure shall not, and it shall cause not authorize or permit any of its Subsidiaries and Affiliates and shall use or any of its reasonable best efforts to cause all of or their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not Representatives to, directly or indirectly: , (ai) encourage, solicit, initiate, or knowingly facilitate or encourage the submission of continue inquiries regarding an Acquisition Proposal (as defined below); (ii) enter into discussions or negotiations with, any Person concerning a possible Acquisition Proposal; or (biii) initiateenter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Exicure shall immediately cease and cause to be terminated, continue or otherwise participate in any and shall cause its Affiliates and all of its and their Representatives to immediately cease and cause to be terminated, all existing discussions or negotiations regarding, or furnish to with any Person any information Persons conducted heretofore with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, an Acquisition Proposal. For purposes hereof, “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person (other than Flashpoint) concerning the sale, lease, exchange or other disposition of the Acquired Assets or any portion thereof. Exicure shall promptly (and in any event within three business days after receipt thereof by Exicure or its Representatives) advise Flashpoint orally and in writing of any Acquisition Proposal; (c) grant , any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement request for information with respect to any Acquisition Proposal; provided, however, that prior or any inquiry with respect to delivery of the Written Consent, if the board of directors of the Company determines or which could reasonably be expected to result in good faith that it is required by its fiduciary duties to do soan Acquisition Proposal, the board material terms and conditions of directors may respond to any Person making an such Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement Proposal, request, or inquiry, and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of the Person making the same. Exicure agrees that the rights and remedies for noncompliance with this Section 2.7 shall include having such party provision specifically enforced by any court of competent jurisdiction, it being acknowledged and the material terms of agreed that any such offer, and the Company shall keep Parent fully informed with respect theretobreach or threatened breach will cause irreparable harm to Flashpoint for which monetary damages would not provide an adequate remedy. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.15
Appears in 1 contract
Exclusivity. The During the Interim Period, the Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates not to, and shall use its commercially reasonable best efforts to cause all of its and their respective officers, directors, managers, employees, stockholders and other representatives (including any investment bankers, attorneys, accountants, agents, advisors, representatives ) not to (and controlled Affiliates shall not authorize any of the Company and its Subsidiaries not them to), directly or indirectly: (a) solicit, initiate, encourage or knowingly facilitate any inquiries with respect to, or encourage the making, submission of or announcement of, any offer or proposal for an Acquisition Proposal; (b) initiate, participate or engage in or continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information of the Company Group with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant approve, endorse or recommend any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securitiesAcquisition Proposal; or (d) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or providing for the consummation of any Acquisition Proposal; or (e) submit any Acquisition Proposal or any matter related thereto to the vote of the Stockholders; provided that solicitation of potential investors with respect to a contemplated issuance of Company Capital Stock for bona fide financing purposes shall not constitute a violation of this Section 6.9; provided, however, that any such issuance of Company Capital Stock shall be subject to Parent’s consent in accordance with Section 6.1(b)(iii). The Company shall, and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause its and their employees, stockholders and other representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement . As promptly as practicable (and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case event within 48 hours one (1) Business Day) after receiving receipt of any Acquisition Proposal from a third partyor any request for nonpublic information or inquiry which it reasonably believes would lead to an Acquisition Proposal, advise the Company shall provide Parent orally with oral and in writing thereof, including the identity written notice of such party and the material terms and conditions of any such offerAcquisition Proposal. Certain confidential information contained in this document, marked by [*****], has been omitted because Sportradar Holding AG (the “Company”) has determined that the information (i) is not material and (ii) would likely cause competitive harm to the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsif publicly disclosed.
Appears in 1 contract
Exclusivity. (a) The Company agrees that after shall not, directly or indirectly, through any officer, director, employee, Representative, financial advisor or agent, or any of its subsidiaries, (i) solicit, initiate or knowingly encourage (including by way of furnishing information or entering into any form of agreement, arrangement or understanding) the date hereof until initiation of any Acquisition Proposal or inquiries or proposals in connection therewith, (ii) participate in any discussions or negotiations regarding any Acquisition Proposal, (iii) withdraw or modify the earlier approval of the Closing Board of the transactions contemplated hereby in a manner adverse to the Offeror, (iv) approve or recommend any Acquisition Proposal, or (v) enter into any agreement related to any Acquisition Proposal; PROVIDED, HOWEVER, that, subject to compliance with section 9, but notwithstanding the termination preceding part of this Agreement section 8(a) or any other provision of this Agreement, nothing shall prevent the Board from considering, negotiating, approving, recommending to its shareholders or entering into an agreement in respect of an unsolicited bona fide written Acquisition Proposal (x) that the Board determines in good faith, after receiving (i) a written opinion from its financial advisors (a copy of which shall be provided to the Offeror) that the Acquisition Proposal would reasonably be expected to, if consummated in accordance with its terms, it shall notresult in a transaction more favourable to Shareholders from a financial point of view than the transaction contemplated by this Agreement, and (ii) a written opinion of outside counsel (a copy of which shall be provided to the Offeror) to the effect that it shall cause is appropriate that the Board take such action in order to discharge properly its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officersfiduciary duties, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not would reasonably be expected to, directly or indirectly: if consummated in accordance with its terms, result in a transaction more favourable to its Shareholders than the transaction contemplated by this Agreement, and (ay) solicit, initiate, or knowingly facilitate or encourage that is received prior to the submission of Expiry Time (any such Acquisition Proposal being referred to herein as a "Superior Proposal; ").
(b) initiateThe Company shall forthwith notify the Offeror, continue at first orally and then in writing, of all current and future Acquisition Proposals of which its directors or otherwise participate in any discussions senior officers are or negotiations regardingbecome aware, or furnish any amendments to any Person any information with respect tothe foregoing, or cooperate in any way or take any other action knowingly request for non-public information relating to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s Company or any Company Subsidiaries’ securities; or (d) enter into any agreement of its subsidiaries in connection with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect for access to the Transactions properties, books or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock records of the Company or any of its Subsidiariessubsidiaries by any Person. Such notice shall include a description of the material terms and conditions of any proposal and provide such details of the proposal, inquiry or contact as the Offeror may reasonably request including the identity of the Person making such proposal, inquiry or contact.
(c) If the Company receives a request for material non-public information from a Person who proposes a bona fide Acquisition Proposal in respect of the Company (the existence and content of which have been disclosed to the Offeror), and the Board determines that such proposal would be likely to be a Superior Proposal pursuant to section 8(a) having received the advice referred to therein, then, and only in such case, the Board may, subject to the execution by such Person of a non-disclosure agreement, provide such Person with access to information regarding the Company and its subsidiaries; PROVIDED, HOWEVER, that the Person making the Acquisition Proposal shall not be precluded under such non-disclosure agreement from making the Acquisition Proposal, and provided further that the Company sends a copy of any such non-disclosure agreement to the Offeror immediately upon its execution and the Offeror is provided with a list or copies of the information provided to such Person and immediately provided with access to similar information to which such Person was provided.
(d) The Company shall ensure that its officers, directors and employees and its subsidiaries and their officers, directors and employees and any financial advisors or other than advisors or Representatives retained by it are aware of the Transactionsprovisions of this section 8 and, for greater certainty, the Company shall be responsible for any breach of this section 8 by its financial advisors or other advisors or Representatives.
Appears in 1 contract
Sources: Letter Agreement (Consoltex Inc/ Ca)
Exclusivity. (a) The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: , through any officer, director, employee, Representative, financial advisor or agent, or any of its subsidiaries, (ai) solicit, initiate, initiate or knowingly facilitate encourage (including by way of furnishing information or encourage entering into any form of agreement, arrangement or understanding) the submission initiation of any Acquisition Proposal; Proposal or inquiries or proposals in connection therewith, (bii) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, regarding any Acquisition Proposal; , (ciii) grant any waiver withdraw or release under any standstill or similar agreement with respect to any class modify the approval of the Company’s Board of the transactions contemplated hereby in a manner adverse to the Purchaser, (iv) approve or recommend any Company Subsidiaries’ securities; Acquisition Proposal, or (dv) enter into any agreement with respect related to any Acquisition Proposal; provided, however, that, subject to compliance with section 9, but notwithstanding the preceding part of this section 8(a) or any other provision of this Agreement, nothing shall prevent the Board from considering, negotiating, approving, recommending to its shareholders or entering into an agreement in respect of an unsolicited bona fide written Acquisition Proposal (x) that prior to delivery of the Written Consent, if the board of directors of the Company Board determines in good faith faith, after receiving (i) a written opinion from its financial advisors (a copy of which shall be provided to the Purchaser) that the Acquisition Proposal would reasonably be expected to, if consummated in accordance with its terms, result in a transaction more favourable to Shareholders from a financial point of view than the transaction contemplated by this Agreement, and (ii) a written opinion of outside counsel (a copy of which shall be provided to the Purchaser) to the effect that it is required by appropriate that the Board take such action in order to discharge properly its fiduciary duties duties, would reasonably be expected to, if consummated in accordance with its terms, result in a transaction more favourable to do soits Shareholders than the transaction contemplated by this Agreement, and (y) that is received prior to the board Expiry Time (any such Acquisition Proposal being referred to herein as a "Superior Proposal").
(b) The Company shall forthwith notify the Purchaser, at first orally and then in writing, of all current and future Acquisition Proposals of which its directors may respond or senior officers are or become aware, or any amendments to the foregoing, or any Person making request for non-public information relating to the Company or any of its subsidiaries in connection with an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect for access to the Transactions properties, books or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock records of the Company or any of its Subsidiariessubsidiaries by any Person. Such notice shall include a description of the material terms and conditions of any proposal and provide such details of the proposal, inquiry or contact as the Purchaser may reasonably request including the identity of the Person making such proposal, inquiry or contact.
(c) If the Company receives a request for material non-public information from a Person who proposes a bona fide Acquisition Proposal in respect of the Company (the existence and content of which have been disclosed to the Purchaser), and the Board determines that such proposal would be likely to be a Superior Proposal pursuant to section 8(a) having received the advice referred to therein, then, and only in such case, the Board may, subject to the execution by such Person of a non-disclosure agreement, provide such Person with access to information regarding the Company and its subsidiaries; provided, however, that the Person making the Acquisition Proposal shall not be precluded under such non-disclosure agreement from making the Acquisition Proposal, and provided further that the Company sends a copy of any such non-disclosure agreement to the Purchaser immediately upon its execution and the Purchaser is provided with a list or copies of the information provided to such Person and immediately provided with access to similar information to which such Person was provided.
(d) The Company shall ensure that its officers, directors and employees and its subsidiaries and their officers, directors and employees and any financial advisors or other than advisors or Representatives retained by it are aware of the Transactionsprovisions of this section 8 and, for greater certainty, the Company shall be responsible for any breach of this section 8 by its financial advisors or other advisors or Representatives.
Appears in 1 contract
Sources: Acquisition Agreement (Applied Digital Solutions Inc)
Exclusivity. The (a) Prior to the Closing, without the Investor’s prior written consent, neither the Company agrees that after the date hereof until the earlier nor any of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not toshall, directly or indirectly: , take (aand the Company shall not authorize or permit any directors, officers or employees of the Company or, to the extent within the Company’s control, other Affiliates or representatives of the Company or any of its Subsidiaries to take) any action to (i) encourage (including by way of furnishing non-public information), solicit, initiate, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal; , (bii) initiateenter into any agreement with respect to any Acquisition Proposal or enter into any agreement, continue arrangement or otherwise understanding requiring it to abandon, terminate or fail to consummate any of the Transactions or (iii) participate in any way in discussions or negotiations regardingwith, or furnish to any information to, any Person any information with respect toin connection with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any Acquisition Proposal; (c) grant . Prior to the Closing, the Company shall use reasonable best efforts to take all actions reasonably necessary to ensure that the directors, officers and employees of the Company or any waiver or release under any standstill or similar agreement with respect of its Subsidiaries and, to any class of the extent within the Company’s control, other Affiliates or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock representatives of the Company or any of its Subsidiaries, other do not take or do any of the actions referenced in the immediately foregoing sentence. Upon execution of this Agreement and prior to the Closing, unless the Investor otherwise consents in writing, the Company shall, if applicable, cease immediately and cause to be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Company be returned.
(b) Prior to the Closing, the Company shall, as promptly as practicable (and in no event later than one business day after receipt thereof), advise the TransactionsInvestor of any Acquisition Proposal, potential Acquisition Proposal, or any inquiry received by it relating to any potential Acquisition Proposal and of the material terms of any proposal or inquiry, including, but not limited to, the identity of the Person and its Affiliates making the same, that it may receive in respect of any such Acquisition Proposal, potential Acquisition Proposal, or inquiry, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall furnish to the Investor a copy of any such proposal or inquiry, if it is in writing, or a reasonably accurate written summary of any such proposal or inquiry, if it is not in writing, and shall keep the Investor informed on a reasonably prompt basis with respect to any developments with respect to the foregoing.
Appears in 1 contract
Exclusivity. The Company agrees that (a) From and after the date hereof Agreement Date until the earlier of the Closing Effective Time or the termination of this Agreement in accordance with its termspursuant to Article 8, it shall the Company will not, and nor will it shall cause authorize or permit any of its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managersaffiliates or employees or any investment banker, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not attorney or other advisor or representative retained by it to, directly or indirectly: , (ai) solicit, initiateinitiate or induce the making, submission or knowingly facilitate or encourage the submission announcement of any Acquisition Proposal; , (bii) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person person any non-public information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, any Acquisition Proposal; , (ciii) grant engage in discussions with any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement person with respect to any Acquisition Proposal; provided, howeverexcept as to disclose the existence of these provisions, that prior to delivery (iv) endorse or recommend any Acquisition Proposal, or (v) enter into any letter of the Written Consentintent or similar document or any contract, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond agreement or commitment contemplating or otherwise relating to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such partyProposal. The Company and its Subsidiaries shall promptlywill, but in and will cause their respective officers, directors, affiliates, employees, investment bankers, attorneys and other advisors and representatives to, immediately cease any case within 48 hours after receiving and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal from a third partyProposal. Without limiting the foregoing, advise Parent orally and in writing thereof, including the identity of such party and the material terms of it is understood that any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase violation of the business, at least 51% of restrictions set forth in the assets of the Company and its Subsidiaries, taken as a whole, preceding two sentences by an officer or the majority of the capital stock director of the Company or any of its SubsidiariesSubsidiaries or any investment banker, attorney or other than professional advisor of the TransactionsCompany or any of its Subsidiaries shall be deemed to be a breach of this Section 6.6 by the Company.
(b) In addition to the obligations of the Company set forth in Section 6.6(a), the Company as promptly as practicable shall advise Parent in writing of any Acquisition Proposal or of any request for nonpublic information or other inquiry which the Company reasonably believes could lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal (to the extent known), and the identity of the person or group making any such request, inquiry or Acquisition Proposal. The Company agrees to keep Parent informed on a current basis of the status and details (including any material amendments or proposed amendments) of any such request, inquiry or Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Cytyc Corp)
Exclusivity. The Company agrees that after (a) During the date hereof until the earlier Interim Period, each of the Closing or the termination of this Agreement in accordance with its terms, it shall not, Holdings and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and shall not take, nor shall it permit any of its Subsidiaries not toAffiliates or Representatives to take, whether directly or indirectly: (a) , any action to solicit, initiate, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate engage in any discussions or negotiations regardingwith, or furnish to enter into any Person any information with respect toagreement with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutesencourage, or could be expected to lead provide information to, any Acquisition Proposal; Person (cother than Acquiror or any of its Affiliates or Representatives) grant concerning any waiver or release under purchase of any standstill or similar agreement with respect to any class of the Company’s or any Company of its Subsidiaries’ securities; equity securities or (d) enter into the issuance and sale of any agreement with respect to any Acquisition Proposal; providedsecurities of, howeveror limited liability company interests in, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by or any of its fiduciary duties to do so, the board Subsidiaries (other than any purchases of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound equity securities by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock employees of the Company or any of its Subsidiaries) or any merger or sale of substantial assets involving the Company or its Subsidiaries, other than immaterial assets or assets sold in the ordinary course of business (each such acquisition transaction, but excluding the Transactions, an “Acquisition Transaction”); provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 10.03(a). The Company shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, an Acquisition Transaction. The Company and Holdings shall notify Acquiror promptly (but in no event later than forty-eight (48) hours) after receipt by the Company, Holdings, any of their respective Subsidiaries or any of their respective Representatives of any inquiry or proposal with respect to an Acquisition Transaction. In such notice, Holdings or the Company shall identify the third party making any such inquiry, proposal, indication or request with respect to an Acquisition Transaction and provide the details of the material terms and conditions of any such inquiry, proposal, indication or request. Notwithstanding the foregoing, nothing in this Section 10.03(a) shall require Holdings, the Company or any of their respective Subsidiaries to violate any Law or any obligation of confidentiality or non-disclosure owed by such party prior to the date of this Agreement.
(b) During the Interim Period, Acquiror shall not take, nor shall it permit any of its Affiliates or Representatives to take, whether directly or indirectly, any action to solicit, initiate, continue or engage in discussions or negotiations with, or enter into any agreement with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its members or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination (a “Business Combination Proposal”) other than with the Company, its members and their respective Affiliates and Representatives; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 10.03(b). Acquiror shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the date hereof with respect to, or which is reasonably likely to give rise to or result in, a Business Combination Proposal. Acquiror shall notify the Company promptly (but in no event later than forty-eight (48) hours) after receipt by Acquiror or any of its Representatives of any inquiry or proposal with respect to a Business Combination Proposal. In such notice, Acquiror shall identify the third party making any such inquiry, proposal, indication or request with respect to a Business Combination Proposal and provide the details of the material terms and conditions of any such inquiry, proposal, indication or request. Notwithstanding the foregoing, nothing in this Section 10.03(b) shall require Acquiror to violate any Law or any obligation of confidentiality or non-disclosure owed by such party prior to the date of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (GigCapital4, Inc.)
Exclusivity. The Company agrees that after 2.5.1 At any time during the term of this Agreement, Institution Personnel or deCODE Personnel may propose in writing additional development directly related to the Crosswalk Project not previously described in the Work Plan for the Crosswalk Project as set forth in Appendix A. Each such proposal shall include a description of the additional development proposed, a budget of the costs to be funded by deCODE and a schedule of payment of such costs. Unless the Parties shall otherwise agree in writing, negotiations between them over any such proposal shall not extend beyond the sixtieth (60th) day next following the date hereof until when the earlier of proposal shall have first been so made, and whenever such negotiations shall end without agreement between the Closing or Parties to proceed with the termination proposed development, the Party proposing the additional development may proceed without the other Party and seek funding from any other sponsor, including but not limited to a commercial sponsor, as set forth in Section 2.5.2, subject to the restrictions provided in this Section 2.5. When such proposal is accepted by the Institutions and deCODE, it shall be appended hereto as an addendum to the Work Plan and shall be subject to the terms and conditions of this Agreement unless otherwise specified, and the additional Crosswalk Project described therein shall commence and budgeted amounts shall be paid as set forth in the proposal or as otherwise agreed by the Parties in writing. In no event shall any additional development be added to the Crosswalk Project nor shall the direction of the Crosswalk Project be altered without the concurrence of the Director of CSRL of the Institutions.
2.5.2 Notwithstanding any contrary provision, no member of the Institution Personnel who shall perform any part of the Crosswalk Project shall seek funding from another commercial sponsor for any additional development proposals directly related to the Crosswalk Project unless and until such proposal has been submitted to deCODE in accordance with its termsthe foregoing Section 2.5.1 and the Parties have failed to agree in writing to append such proposal hereto as an addendum to the Work Plan within the stipulated sixty (60) days. In the event of such failure to agree, it an Institution Personnel shall notbe free to seek and accept funding from such -6- 156 commercial sponsor for such development proposal (the "Third Party Project"), and it shall cause its Subsidiaries and Affiliates and shall use its provided that, in the reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates determination of the Company and its Subsidiaries not toJSC created pursuant to the Strategic Alliance Agreement, directly or indirectlyafter consultation with the Institution Personnel: (a) solicit, initiate, the subject matter of the Third Party Project is not so closely related scientifically to the Crosswalk Project that sponsorship of such Third Party Project by such other commercial sponsor would create a conflict of interest for the Institutions or knowingly facilitate or encourage any Institution Personnel performing the submission of any Acquisition ProposalCrosswalk Project; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making risk of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposalsubject matter overlaps between the Crosswalk Project and such Third Party Project is minimal; (c) grant the Third Party Project would not conflict with the terms and conditions of this Agreement and would not have a material impact on the Crosswalk Project or the Institutions' ability to perform the Crosswalk Project; and (d) such other commercial sponsor of the Third Party Project is not a competitor of deCODE in any waiver of its business areas that would create a conflict of interest.
2.5.3 At any time during the term of this Agreement, if any Institution Personnel wishes to seek funding for any research or release under development work directly related to the Crosswalk Project, including additional funding for the Crosswalk Project, from any standstill international, federal or similar agreement state agencies, or from any not-for-profit foundations, except foundations owned or operated by a commercial entity other than deCODE or which have obligations to commercial entities with respect to such research, such Institution Personnel shall so notify deCODE's Crosswalk Coordinator, including a description of the research or development work for which such funding is sought. deCODE shall have thirty (30) days to review such proposal and decide whether, in the reasonable determination of deCODE, after consultation with Institutions and the Institution Personnel, such funding should be sought. No Institution Personnel shall accept any such funding for any research or development work directly related to the Crosswalk Project unless approved pursuant to this Section 2.5.3. In any event, any Institution Personnel shall follow the procedures set forth in Section 5 with respect to any class of the Company’s grant applications and progress reports disclosing Crosswalk Information.
2.5.4 Institution Personnel shall be free at any time to seek funding from any source for any research or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction development work that is not related or similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsCrosswalk Project.
Appears in 1 contract
Exclusivity. The Company Dealer acknowledges that the value to Dealer of this agreement is based on the unique package of services marketed to automobile customers by ABT and ABT's reputation for delivering such services on a consistent basis. Dealer agrees that after the date hereof until the earlier certain key elements of the Closing ABT package of services are: (i) electronic transmission of customer purchase or lease requests; (ii) rapid response by dealers to consumer pricing or lease pricing requests, including immediate telephone contact with upfront, firm pricing provided over the termination phone on such call; (iii) customer paperwork completed or nearly completed prior to customer arrival at the dealership for pickup so as to ensure the customer spends as little time as possible at the dealership for pickup; and (iv) Dealer training and support to implement the ABT package of services and to maintain the style and reputation of the ABT package of services (collectively the "Key Elements'). Dealer acknowledges that ABT has spent, and will spend, considerable time and money developing its package of services and training Dealer to deliver such services in a consistent way which maintains ABT's distinctive market presence and reputation. Accordingly, Dealer agrees that during the Term of this Agreement in accordance with its terms(and for one (1) year thereafter if this Agreement is terminated unless it is terminated by the Dealer pursuant to section 8(c)(iii)), it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company Dealer and its Subsidiaries not toaffiliates will not, directly or indirectly: (a) solicit, initiateparticipate with any third party in any arrangement or agreement which involves any or all of the Key Elements, and will not, directly or knowingly facilitate indirectly, participate with any third party in any arrangement or encourage agreement which involves any or all of the submission of any Acquisition Proposal; (b) initiateKey Elements, continue or otherwise and will not participate in any discussions pricing, credit or negotiations regardingfinancing, insurance or furnish to any Person any information with respect toservice involving or made available on the Internet, online or cooperate by other electronic means. Without contradicting the foregoing, Dealer may establish and maintain its own web site and/or participate in any way or take factory direct program. Notwithstanding any other action knowingly provisions of this Agreement, in the event Dealer breaches this Section 14, the provisions of this Section shall remain in full force and effect for one (1) year after such breach is cured. Dealer acknowledges that the provisions of this Section 14 were a material inducement to facilitate ABT in entering into this Agreement, and that ABT would not have entered into this Agreement with Dealer in the absence of such provisions. Dealer acknowledges and agrees that compliance with the provisions of Sections 12 and 14 is necessary to protect the business and good will of ABT, and that any breach of Sections 12 or encourage 14 will result in irreparable and continuing damage to ABT, for which money damages may not provide adequate relief. Accordingly, Dealer agrees that during the "Exclusivity Period" (as defined below), Dealer and its affiliates will not directly or indirectly, participate with any inquiries third party in any arrangement or the making of agreement which involves any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class all of the Company’s Key Elements, and will not participate in any pricing, credit or any Company Subsidiaries’ securities; financing, insurance or (d) enter into any agreement with respect to any Acquisition Proposalinformation service involving or made available on the Internet, online or by other electronic means. For purposes of this Section 14, the "Exclusivity Period" commences on the date of this Agreement, and terminates one year after the date of termination; provided, however, that prior to delivery if ----------------- this Agreement is terminated any time after the first anniversary of the Written Consentdate hereof, if then the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal Exclusivity Period terminates six months after the date of termination; provided, further, however, that if this Agreement that was not solicited after is terminated by -------------------------- Dealer pursuant to Section 8(c)(iii) hereof, then the execution Exclusivity Period terminates on the date of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase termination of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsAgreement.
Appears in 1 contract
Exclusivity. The Company agrees that after From the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termsuntil the Closing Date or earlier termination hereof, it shall notnone of Seller, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all the Company or any of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to(a) shall, directly or indirectly: (a) , through any of its Representatives or otherwise, take any action to solicit, initiate, or knowingly facilitate seek, or encourage the submission of any Acquisition Proposal; (b) initiateinquiry, continue proposal or otherwise offer from, furnish any information to, or participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead towith, any third party (other than Purchaser or an Affiliate thereof designated by Purchaser) regarding any Acquisition Proposal; Proposal (cany such transaction being a “Third-Party Acquisition”) grant and (b) shall enter into any waiver or release under any standstill or similar agreement Contract with respect to any class Acquisition Proposal, and each agrees that any such discussions or negotiations with respect to any Acquisition Proposal (other than with Purchaser) in progress shall have been terminated on or prior to the date hereof. Seller, the Company and their Affiliates, as applicable, shall be responsible for the conduct of each of their Representatives. Any of Seller, the Company or any of their Affiliates, as the case may be, shall notify Purchaser promptly of the existence or upon the receipt of any such proposal or inquiry by such party or any of its Representatives of any proposal for, or inquiry respecting, any Third-Party Acquisition by any Person that, following the date hereof, informs Seller or the Company in writing that it is considering making or has made such a proposal or inquiry. Such notice to Purchaser will indicate in reasonable detail the identity of the Person making the proposal or inquiry, including the identity of the ultimate parties in interest if known, and the terms and conditions of such proposal or inquiry. Unless the board of directors of Seller has received advice of counsel that it is required pursuant to fiduciary duties to act otherwise (in which case reasonable prior notice will be given to Purchaser), so long as this Agreement remains in effect and has not been terminated, neither Seller’s or the Company’s board of directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Purchaser, its approval of this Agreement with respect to any Company Subsidiaries’ securities; Acquisition Proposal, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal (other than as contemplated by this Agreement) or (diii) authorize Seller or the Company to enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, (other than the Transactionsas contemplated by this Agreement).
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of (a) Until the Closing Date or the earlier termination of this Agreement pursuant to Section 12, neither Sellers nor the Company, except in accordance connection with the operation of the Projects in the ordinary course of business (including in satisfaction of any contractual obligations), shall, nor shall any of them permit its termsrespective Affiliates, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not agents to, directly or indirectly: (a) , encourage, solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any initiate discussions or negotiations regardingwith, or furnish to any Person provide any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; Person or group of Persons (cother than Buyer or any of its Affiliates) grant in furtherance of, or any waiver or release under any standstill or similar agreement with respect to any class proposal for the acquisition (whether by purchase of the Company’s Equity Interests or any Company Subsidiaries’ securities; or (dAssets) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do soor the Projects, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or similar transaction involving the Company or the Projects or any other transaction or series of transactions that is similar would result in any person or business entity other than Buyer or its Affiliates acquiring control of the Company, the Assets and/or the Projects (an “Alternate Transaction”). Without limiting the obligations under the preceding sentence, in the event that (1) Sellers receive a proposal for an Alternate Transaction, then Sellers shall (i) promptly (but in no event in less than twenty four hours) notify Buyer in writing of such Alternate Transaction, (ii) include in such notification the terms of any such proposal or offer that it may receive with respect thereto (and provide Buyer with a copy thereof in writing), including the identity of the soliciting party, and (iii) keep Buyer informed with respect to the Transactions or that otherwise involves any purchase status of the businessforegoing, at least 51% and (2) RRP as the managing shareholder of Ridgewood Electric Power Trust IV and Ridgewood Electric Power Trust V determines that the assets Alternate Transaction of which Buyer was previously notified constitutes or is reasonably likely to lead to a Superior Proposal, then Sellers shall promptly (but in no event in less than twenty four hours) notify Buyer in writing of such determination. Neither Sellers nor the Company and shall, after the date of this Agreement, enter into any confidentiality agreement that would prohibit it from providing such information to Buyer.
(b) Sellers shall use Commercially Reasonable Efforts to require any Third Party (or its Subsidiariesagents, taken as a wholeemployees or advisors), or the majority in possession of the capital stock of Proprietary Information about Sellers, the Company or the Projects that was furnished by or on behalf of Sellers or the Company, to return or destroy all such information in accordance with the applicable confidentiality agreements to which such Third Parties are a party.
(c) Notwithstanding the foregoing provisions of paragraph 6.10(a), Sellers and RRP may, subject to Sellers’ compliance with Section 6.10(a) above and prior to obtaining the shareholder approval of Ridgewood Electric Power Trust IV and Ridgewood Electric Power Trust V, engage in negotiations or discussions regarding an Alternate Transaction with any third party that has made an unsolicited bona fide written proposal for an Alternate Transaction, which RRP as the managing shareholder of Ridgewood Electric Power Trust IV and Ridgewood Electric Power Trust V, has determined in good faith (after consultation with its Subsidiariesoutside legal counsel and financial advisors) constitutes or is reasonably likely to lead to a Superior Proposal. For purposes of clarification, other than the Transactionsissuance by RM of the Confidential Information Memorandum dated February 28, 2008 and any discussions and negotiations with recipients thereof and bidders in response to such memorandum through June 2, 2008 do not constitute a solicitation hereunder by Sellers.
(d) In the event Sellers provide notice to Buyer regarding a proposed Superior Proposal pursuant to Section 6.10(a) above, Buyer shall have a right exercisable by written notice to Sellers within a period of ten (10) days following Sellers’ notice to match all of the terms of any such proposal (a “Matching Proposal”). In the event that Buyer makes a binding Matching Proposal to Sellers, Sellers shall negotiate in good faith with Buyer to amend this Agreement to reflect such Matching Proposal. If the Agreement is not amended and executed and delivered by Sellers and Buyer within five (5) Business Days of the date on which Buyer gave notice of the Matching Proposal, then Sellers may reject such Matching Proposal and proceed with the negotiation and consummation of the Superior Proposal.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Ridgewood Electric Power Trust V)
Exclusivity. The Company agrees that after During the period from the date hereof until of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, it the Company shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company (including for this purpose commonly Controlled Affiliates and its Subsidiaries Subsidiaries) not to, directly or indirectly: , (a) solicit, initiate, seek, encourage or knowingly facilitate support any inquiry, proposal or encourage the submission of offer from, furnish any Acquisition Proposal; (b) initiateinformation to, continue or otherwise participate in any discussions or negotiations regardingwith, any corporation, partnership, person or other entity or group (other than SPAC and its Subsidiaries and Representatives) regarding any Acquisition Proposal, (b) enter into, continue with or participate in any discussions or negotiations with, or furnish to any Person provide any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Person (other than SPAC and its Subsidiaries and Representatives) concerning a possible Acquisition Proposal; Proposal or (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal; provided, however, that prior to delivery of . During the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after period from the date of this Agreement that was not solicited after through the execution earlier of the Closing or the termination of this Agreement and will not be bound in accordance with its terms, upon receipt by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiariescommonly Controlled Affiliates of any offer, proposal, indication of interest, request or inquiry that could reasonably be expected to lead to an Acquisition Proposal, the Company shall within one (1) Business Day (i) notify SPAC in writing of its receipt of such Acquisition Proposal and (ii) communicate to SPAC in writing in reasonable detail the terms of any such Acquisition Proposal (including providing SPAC with a written statement with respect to any non-written Acquisition Proposal received, which statement must include the terms thereof). In addition, the Company will within one (1) Business Day advise SPAC in writing of any material modification or proposed modification to such Acquisition Proposal and any other than information necessary to keep SPAC informed in all material respects regarding the Transactionsstatus and details of such Acquisition Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Cetus Capital Acquisition Corp.)
Exclusivity. The (a) During the Interim Period, the Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries Representatives and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: , (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (bi) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate solicit or encourage (including by way of providing confidential or non-public information) any inquiries inquiries, proposals or the making of any proposal offers that constitutes, constitute or could may reasonably be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class purchase of the Company’s shares or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors other Equity Securities of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the or material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% portion of the assets of the Company and its SubsidiariesSubsidiaries (on a consolidated basis) or any merger, taken as a wholebusiness combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the majority execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the capital stock Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its SubsidiariesRepresentatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the TransactionsCompany) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b).
Appears in 1 contract
Sources: Business Combination Agreement (Alpha Star Acquisition Corp)
Exclusivity. The Company agrees that after Prior to the date hereof until Closing, the earlier of the Closing or the termination of this Agreement in accordance with its terms, it Sellers and Holdings shall not, and it shall cause its Subsidiaries take all action necessary to ensure that the other Companies and their Affiliates and or representatives shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not tonot, directly or indirectly: indirectly (a) solicit, initiate, or knowingly facilitate accept any proposal or encourage the submission of any offer that constitutes or would reasonably be expected to lead to an Acquisition Proposal; , or (b) initiateinitiate any discussions, continue conversations, negotiations or otherwise participate in any discussions or negotiations other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way with, or take any other action knowingly to assist or participate in, or facilitate or encourage any inquiries or the making of submission of, any proposal that constitutes, or could reasonably be expected to lead to, any an Acquisition Proposal; (c) grant . The Sellers and Holdings shall immediately cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any waiver or release under any standstill or similar agreement Persons conducted heretofore with respect to any class of the Company’s foregoing, and shall direct its investment bankers to request that all such Persons promptly return or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of destroy all confidential information regarding the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such partyCompanies previously delivered thereto. The Company Sellers and its Subsidiaries Holdings shall notify Purchaser promptly, but in any case event within 48 hours after receiving any Acquisition Proposal from a third partytwo (2) Business Days, advise Parent orally and in writing thereofif any Acquisition Proposal, including the identity of such party and the material terms of or any such offerproposal or offer that could reasonably be expected to lead to an Acquisition Proposal, and the Company shall keep Parent fully informed is made, or any inquiry or other contact with any Person is made with respect thereto. For purposes Such notice to Purchaser shall include the material terms and conditions thereof. The Sellers and Holdings shall not, and shall cause the other Companies not to, release any Person from, or waive any provision of, any confidentiality agreement to which any Company or Seller is a party, without the prior written consent of this Section 7.10, Purchaser. “Acquisition Proposal” means any inquiry, offer or proposal for, or any indication of interest in, a merger, consolidation, asset any of the following: (i) any direct or indirect acquisition or purchase, in one transaction or a series of transactions, of (A) all or any portion of the capital stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in equity interests any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% Companies or (B) a substantial portion of the assets of the Company and its SubsidiariesCompanies, taken as a whole(ii) any merger, consolidation or other business combination relating to or involving the majority any of the capital stock Companies or (iii) any recapitalization, reorganization or other extraordinary business transaction involving or otherwise relating to any of the Company or any of its Subsidiaries, other than the TransactionsCompanies.
Appears in 1 contract
Exclusivity. The In consideration of and to induce the significant commitment of effort and expense that CoreRx expects to incur in connection with the Transaction, the Company hereby agrees that after the date hereof until the earlier of (a) 11:59 p.m. Eastern Standard Time on the Closing or date that is 30 days following the termination date on which the Company executes this letter (the “Initial Exclusivity Period Termination Date”), and (b) the execution of this Agreement a final and written definitive agreement with respect to the Transaction (such period, as it may be extended in accordance with its termsthis paragraph, it the “Exclusivity Period”), the Company shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives (as defined below) not to, directly or indirectly: indirectly (a1) initiate contact with, solicit, initiateencourage or disclose, directly or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiateindirectly, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect concerning the Company or its business to, (2) afford any access to the Company’s personnel, offices, facilities, properties, assets, books or records to, or cooperate in (3) enter into or continue any way discussion, negotiation or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead toagreement with, any Acquisition Proposalperson or entity (other than CoreRx), in each case, in connection with a potential acquisition of all or any portion of the equity, assets or business of the Company, whether directly or indirectly, by operation of law or otherwise (each, a “Competing Transaction”); provided, that if on the Initial Exclusivity Period Termination Date CoreRx (cA) grant confirms to the Company in writing that it does not intend to propose any waiver adverse change to the financial or release under any standstill or similar other material terms set forth in the confidential, non-binding indication of interest delivered by CoreRx to the Company on January 19, 2024 including, without limitation, the proposed per-share offer price of $1.10 per share (the “Offer”) and (B) is continuing to work in good faith towards the negotiation and execution of a definitive agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do soTransaction, the board of directors may respond to any Person making Exclusivity Period shall be automatically extended for an Acquisition Proposal after additional 10 days (the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto“Extended Exclusivity Termination Date”). For purposes of this Section 7.10letter, “Acquisition ProposalRepresentatives” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company means the Company’s affiliates and the Company’s and its Subsidiariesaffiliates respective directors, managers, officers, employees, representatives, agents and advisors (including, without limitation, attorneys and accountants). The Company hereby agrees that any action taken as by one or more of its Representatives that would constitute a whole, or the majority breach of the capital stock of this letter if taken by the Company will constitute a breach of this letter by the Company. The Company shall and shall cause its Representatives to as promptly as practicable (and in no event more than 24 hours following the Company’s execution of this Agreement) cease and cause to be terminated any existing discussions or negotiations with any of its Subsidiaries, persons or entities (other than CoreRx and its representatives) conducted on or prior to the Transactionsdate hereof with respect to any Competing Transaction.
Appears in 1 contract
Sources: Exclusivity Agreement (Corerx Inc)
Exclusivity. The Company agrees that From and after the date hereof of this Agreement until the earlier to occur of the Closing Date or the termination of this Agreement in accordance with pursuant to its terms, it TTS and Shareholder shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, TTS’s directors, managersofficers, employees, investment bankers, attorneys, accountants, agents, financial advisors, representatives agents and controlled Affiliates of the Company and its Subsidiaries affiliates not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate solicit or encourage the submission of any Acquisition ProposalProposal (as defined below) by any person, entity, or group (other than Purchaser and its affiliates, agents and representatives); or (b) initiate, continue or otherwise participate in any discussions or negotiations regardingwith, or furnish to any Person disclose any information with respect concerning TTS or its business to, or cooperate in any way afford access to the properties, books or take any other action knowingly to facilitate or encourage any inquiries or the making records of any proposal that constitutesTTS, or could be expected to lead tootherwise assist or facilitate, or enter into any agreement or understanding with, any person, entity or group in connection with any Acquisition Proposal. For purposes of this Agreement, an “Acquisition Proposal” means any proposal or offer relating to: (i) any merger, consolidation, sale or license of all, a portion of, or substantially all of the assets or stock of TTS (other than sales or licenses of assets or inventory in the Ordinary Course of Business or as permitted by this Agreement); or (cii) grant investments in or sales by TTS or Shareholder of any waiver capital stock or release under other securities of TTS or any standstill Subsidiary. TTS and Shareholder shall immediately cease any and all existing activities, discussions or similar agreement negotiations with any parties conducted heretofore with respect to any class of the Company’s foregoing. TTS and Shareholder shall promptly (A) notify Purchaser if TTS or Shareholder receives any Company Subsidiaries’ securities; proposal or (d) enter into any agreement written inquiry or written request for information in connection with respect to any an Acquisition Proposal or potential Acquisition Proposal; provided, however, that prior to delivery and (B) notify Purchaser of the Written Consentsignificant terms and conditions of any such Acquisition Proposal, if including the board of directors identity of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person party making an Acquisition Proposal Proposal. In addition, from and after the date of this Agreement that was not solicited after until the execution earlier to occur of the Closing Date or termination of this Agreement pursuant to its terms, TTS shall not, and will shall cause its directors, officers, employees, shareholders, financial advisors, agents and affiliates not be bound by the restrictions set forth aboveto, directly or indirectly, make or authorize any public statement, recommendation or solicitation in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving support of any Acquisition Proposal from a third partymade by any person, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer entity or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, group (other than the TransactionsPurchaser).
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until Prior to the earlier of the Closing or the termination of this Agreement in accordance with its termsMOU pursuant to paragraph 9 below and the entry of the Bid Procedures Order on the Bankruptcy Court's docket, it the Debtors shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: , through any officer, director, employee, agent, professional or advisor, (ai) solicit, initiate, encourage or knowingly facilitate discuss any proposal or encourage the submission of offer from any Acquisition Proposal; person (bother than Sponsors or Buyer) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish relating to any Person financing, refinancing, acquisition, divestiture, business combination or reorganization of or involving the business and operations of the Acquired Business (an "Alternative Transaction"), (ii) furnish any information with respect to, or cooperate assist or participate in, or facilitate in any other manner, any effort or attempt by any person to do or seek the foregoing or (iii) seek or support Bankruptcy Court approval of a motion or order inconsistent in any way or take any other action knowingly to facilitate or encourage any inquiries or with the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required transactions contemplated by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited MOU. Promptly after the execution of this Agreement MOU by Debtors, Debtors will terminate (and will not be bound by cause each of its affiliates, stockholders, directors, officers, employees, agents or representatives to terminate) all discussions with any third party regarding the restrictions set forth above, in which case, Parent foregoing and will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours notify Sponsors immediately after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company Debtors (or any of its Subsidiariesaffiliates, other than stockholders, directors, officers, employees, agents or representatives) learns that any person has made any proposal, offer, inquiry or contact with respect to the Transactionsforegoing. The acknowledgement of, and agreement with, the terms and conditions set forth in this letter by Debtors will constitute a representation and warranty by Debtors that neither Debtors nor, to its knowledge, any of its affiliates, stockholders, directors, officers, employees, agents or representatives, has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to the foregoing transactions.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicitSellers recognize that CH2M HILL has spent, initiateand will continue to expend considerable money, or knowingly facilitate or encourage effort, time and other resources performing its due diligence investigation of VECO and negotiating the submission Purchase Agreement for the Transaction. Accordingly, following the execution of this Term Sheet at any Acquisition Proposal; time prior to September 1, 2007 (bthe “Exclusivity Termination Date”), Sellers shall, and shall cause Sellers’s representatives and VECO’s directors, officers and employees to, (i) initiate, continue or otherwise participate in immediately halt any discussions with third parties regarding any transaction the closing of which would be inconsistent with or negotiations regardinginterfere with or prevent or delay the consummation of the Transaction (such a transaction being referred to hereinafter as a “Competing Transaction”); and (ii) not hold any discussions with, or furnish provide any information to any Person inquiry made by any information with respect tothird party concerning a proposed acquisition, or cooperate in any way with, agree to, assist or take any other action knowingly to participate in, solicit, consider, entertain, facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead toencourage, any Acquisition Proposal; effort or attempt by any third party to do or seek any of the foregoing. If at any time prior to the Exclusivity Termination Date any of the Sellers is approached in any manner by a third party concerning a competing Transaction (c) grant any waiver a “Competing Party”), Sellers shall promptly inform CH2M HILL regarding such contact and provide a description of the inquiry or release under any standstill or similar agreement proposal, including the name of such Competing Party. The provisions of this paragraph shall not apply with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; providedcommunication between VECO, howeverits directors, officers and employees that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is are required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will law. Sellers shall be entitled to receive terminate exclusivity and this Term Sheet (and such date of termination shall be then be deemed the Exclusivity Termination Date) at any information provided time upon five (5) days notice in the event CH2M HILL at any time during the course of negotiation of definitive agreements, or as a result of its due diligence or Special Investigation, advises Sellers that is unwilling to such party simultaneously proceed with delivery to any such party. The Company the Transaction on the terms and its Subsidiaries shall promptlyconditions contemplated by this Term Sheet, but or breaches this Term Sheet in any case material respect, which breach is not cured within 48 hours after receiving any Acquisition Proposal 5 days of notice from a third party, advise Parent orally and VECO; such termination shall be in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or addition to other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsremedies Sellers may have for breach.
Appears in 1 contract
Sources: Business Combination Agreement (Ch2m Hill Companies LTD)
Exclusivity. For purposes of this Agreement, the term "Takeover Proposal" shall mean any proposal for a merger or other business combination involving the Company or any Subsidiary, or for the acquisition of a substantial equity interest in the Company or any Subsidiary, a substantial portion of the assets of the Company or any Subsidiary or a product line or line of business of the Company or any Subsidiary, other than as contemplated by this Agreement. The Company agrees that after the date hereof until the earlier shall promptly advise Purchaser orally and in writing of any "Takeover Proposal" or of any proposal, or inquiry reasonably likely to result in a Takeover Proposal. Each member of the Closing or the termination of this Agreement in accordance with its terms, it Company Group shall not, and it shall cause directly or indirectly, whether through its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountantsStockholders, agents, advisorsrepresentatives, representatives and controlled Affiliates of the Company and its Subsidiaries not or otherwise, engage in any discussions or negotiations with, or provide any non-public information to, directly any person or indirectly: (a) solicitentity making, initiateproposing to make or believed to be contemplating a Takeover Proposal to the Company; PROVIDED, or knowingly facilitate or encourage HOWEVER, that the submission of any Acquisition Proposal; (b) initiateCompany, continue or otherwise its Subsidiaries, and their directors and officers will remain free to participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, assist or cooperate participate in, or facilitate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead tomanner, any Acquisition Proposal; (c) grant effort or attempt by any waiver third party to do or release under seek any standstill or similar agreement with respect of the foregoing to any class the extent required by the fiduciary obligations of the Board of Directors of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery as determined in good faith by a majority of the Written Consent, if members thereof following the board receipt of directors advice of outside legal counsel. In the event that any such activities result in a Takeover Proposal which the Board of Directors of the Company determines in good faith that it reasonably concludes is required superior to the transaction contemplated by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after ("Superior Proposal"), nothing contained in this Agreement will prevent the execution Board of Directors of the Company from recommending such Superior Proposal to the Company's Stockholders, and from withdrawing any recommendation of this Agreement and will the transactions contemplated hereby. In the event that the Merger contemplated by this Agreement is not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from consummated because of a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offerSuperior Proposal, and the Company shall keep Parent fully informed with respect thereto. For purposes transaction contemplated by the Superior Proposal is not consummated, the Board of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets Directors of the Company and its Subsidiariesagrees to negotiate in good faith with the Purchaser with a view toward consummating a transaction with the Purchaser as contemplated by this Agreement; PROVIDED, taken as a wholeHOWEVER, or that the majority of the capital stock of obligation created by this sentence shall not apply if the Company or any of its Subsidiaries, other than has paid Purchaser the Transactionstermination fee provided for in Section 9.3.
Appears in 1 contract
Sources: Merger Agreement (Fauth John J)
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (bi) initiate, continue solicit, knowingly encourage or otherwise participate in knowingly facilitate any discussions inquiry, proposal, offer or negotiations regarding, discussion with any party (other than Parent) concerning any Acquisition Proposal or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal or offer that constitutes, or could would reasonably be expected to lead to, any to an Acquisition Proposal; , (cii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive furnish any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of concerning the business, at least 51% of the properties or assets of the Company and its SubsidiariesSubsidiaries to any Person (other than Parent) relating to any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal or (iii) engage in discussions or negotiations with any party (other than Parent) concerning any Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal. The Company shall, taken as a wholeand shall cause its Representatives to, (i) immediately cease any and all discussions or the majority negotiations of the capital stock nature described in preceding sentence that have occurred prior to the date of this Agreement (other than with Parent and its Representatives), and (ii) promptly (and within 24 hours) notify Parent of the material terms of any Acquisition Proposal received after the date hereof, including the identity of the party making such Acquisition Proposal and the amount offered in such Acquisition Proposal. “Acquisition Proposal” shall mean any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase (including through a license) of any material amount of equity or assets of the Company or any of its Subsidiaries, whether through merger, business combination, or other than transaction, and whether in one transaction or a series of related transactions; provided, however, that Acquisition Proposal shall not include any sale of inventory in the Transactionsordinary course of business and consistent with past practice.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of Until the Closing occurs or the termination of this Agreement is terminated in accordance with its terms, it shall notand except in connection with the transactions contemplated by the S▇▇▇▇▇ Merger Agreement and the Transactions contemplated hereby, Seller will not (and it Seller shall cause its Subsidiaries and controlled Affiliates and shall use its reasonable best efforts to cause all of their respective officersRepresentatives to not), directorssolicit, managersinitiate, employeesnegotiate, investment bankersagree to, attorneysengage in or renew any contact concerning any proposal or offer, accountantsor any contact that would reasonably be expected to result in a proposal or offer, agents, advisors, representatives from any Person (other than the Acquirors and controlled Affiliates their respective Affiliates) relating to any of the Company and its Subsidiaries not to, directly or indirectlyfollowing involving the Acquired Companies: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or recapitalization, (b) a merger or consolidation, (c) an acquisition or purchase of any of the material assets (or any material portion of its assets) of, or any equity interest in, the Acquired Companies, except for the sale of assets in the ordinary course of business consistent with past practice, (d) any similar transaction or business combination outside the ordinary course of business, or (e) any financing, investment, acquisition, purchase, merger, sale or any other similar transaction that is similar in any respect would restrict, prohibit or inhibit the Seller’s ability to consummate the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, contemplated by this Agreement or the majority of the capital stock of the Company or S▇▇▇▇▇ Merger Agreement (each, an “Acquisition Proposal”). Seller represents and warrants that all discussions and negotiations relating to any of its Subsidiaries, Acquisition Proposal (other than the Transactionstransactions with the Acquirors contemplated by this Agreement) have been terminated. In the event Seller or the Target receives any unsolicited Acquisition Proposal, Seller shall promptly, and in any event, within forty-eight (48) hours, provide written notice and a copy of such Acquisition Proposal to the Acquirors.
Appears in 1 contract
Sources: Merger Agreement (Platinum Eagle Acquisition Corp.)
Exclusivity. The Company agrees that (a) From and after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termsAgreement, it Company shall not, and it shall cause its Subsidiaries each Subsidiary and Affiliates and shall use its reasonable best efforts to cause all each of their respective officers, directors, managersofficers, employees, investment bankers, attorneys, accountants, agents, financial advisors, representatives and controlled Affiliates of the Company and its Subsidiaries agents not to, directly or indirectly: , (ai) solicit, initiate, engage or knowingly facilitate participate in or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions discussion or negotiations regardingwith any Person or entity (other than Purchaser) concerning any merger, consolidation, sale of material assets, tender offer for, recapitalization of or accumulation or acquisition of securities issued by Company or any Subsidiary, proxy solicitation, other business combination involving Company or any Subsidiary or any other plan of reorganization of Company or any Subsidiary (including, without limitation, any Employee Stock Ownership Plan structure) (collectively, “Alternative Transaction”), or furnish (ii) provide any non-public information concerning the business, properties or assets of Company or any Subsidiary to any Person any information with respect or entity (other than to Purchaser). Company shall, and shall cause each of its Subsidiaries to, or cooperate in immediately cease any way or take and all existing activities, discussions and negotiations with any Person other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement than Purchaser with respect to any class Alternative Transaction and the Company shall, and shall cause its Subsidiaries to, continue indefinitely the confirmation hearing for their pending reorganization and liquidation plans involving an Employee Stock Ownership Plan. Company shall immediately notify Purchaser of, and shall disclose to Purchaser all details of, any inquiries, discussions or negotiations described in the first sentence of this Section 6.10. The provisions of this Section 6.10 are referred to in this Agreement as the “Exclusivity Provisions.”
(b) Notwithstanding the provisions of subsection (a) above, prior to entry of the Company’s Confirmation Orders, the Debtors may, to the extent required by the Bankruptcy Code, the Bankruptcy Rules, the operation and information requirements of the Office of the United States Trustee, or any orders entered or approvals or authorizations granted by the Bankruptcy Court in the Case during the period prior to Closing (collectively, the “Bankruptcy- Related Requirements”), or to the extent that the board of directors of Company Subsidiaries’ securities; determines, in good faith after consultation with outside legal counsel, that such board’s fiduciary duties under applicable Governmental Rule require it to do so, participate in discussions or negotiations with, and, subject to the requirements of subsection (dc) enter into any agreement with respect below, furnish information to any Acquisition Person, entity or group after such Person, entity or group has delivered to the Debtors, in writing, an unsolicited bona fide offer to effect an Alternative Transaction that the board of directors of Company in its good faith judgment determines, after consultation with its independent financial advisors, would result in a transaction more favorable to the stakeholders of the Debtors from a financial point of view than the transactions contemplated hereby and for which financing, to the extent required, is then committed (or which, in the good faith judgment of the board of directors, is reasonably capable of being obtained) and which (in the good faith judgment of the board of directors) is likely to be consummated (a “Superior Proposal”). In the event the Debtors receive a Superior Proposal, nothing contained in this Agreement (but subject to the terms hereof) will prevent the board of directors of Company from approving such Superior Proposal or requesting authorization of such Superior Proposal from the Bankruptcy Court, if such board determines, in good faith, after consultation with outside legal counsel, that such action is required by its fiduciary duties under applicable Governmental Rule; and in such case, the board of directors of Company may terminate this Agreement pursuant to Section 11.1(f) hereof; provided, however, that prior to delivery Company shall not terminate this Agreement until at least five (5) Business Days after Purchaser’s receipt of a copy of such Superior Proposal.
(c) Debtors shall, within one (1) Business Day of the Written Consentoccurrence thereof, if the board of directors notify Purchaser orally and in writing of the receipt of a Superior Proposal. Such notice to Purchaser shall indicate in reasonable detail the identity of the potential acquirer and the material terms and conditions of such Superior Proposal, to the extent known.
(d) Notwithstanding anything to the contrary in this Section 6.10, Company determines in good faith that it is required by shall not, and shall cause each of its fiduciary duties Subsidiaries not to, provide any non-public information to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such a third party simultaneously with delivery to any such party. The unless: (i) Company and its Subsidiaries shall promptlyprovide such non-public information pursuant to a non-disclosure agreement entered into subsequent to the date hereof with terms regarding the protection of confidential information at least as restrictive as such terms in the Confidentiality Agreement or pursuant to confidentiality agreements existing on the date hereof; and (ii) such non-public information has been delivered previously or made available to Purchaser.
(e) Notwithstanding anything to the contrary in this Section 6.10, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes be permitted to continue the solicitation of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication expressions of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsinternational operations.
Appears in 1 contract
Sources: Investment and Purchase Agreement
Exclusivity. The Company agrees that after between the date hereof until of this Agreement and the earlier of the Closing or and the termination of this Agreement in accordance with its termsAgreement, it the Company shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all ensure that none of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives its Affiliates and controlled Affiliates of the Company and its Subsidiaries not toRepresentatives shall, directly or indirectly: indirectly (a) solicit, initiate, consider, encourage or knowingly facilitate accept any proposal or encourage the submission of any offer that constitutes an Acquisition Proposal; Proposal or (b) initiate, continue or otherwise participate in any discussions discussions, conversations, negotiations or negotiations other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way way, assist or take any other action knowingly to participate in, facilitate or encourage any inquiries or the making of submission of, any proposal that constitutes, or could reasonably be expected to lead to, any an Acquisition Proposal; (c) grant . The Company immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any waiver or release under any standstill or similar agreement Persons conducted heretofore with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such partyforegoing. The Company and its Subsidiaries shall notify Parent promptly, but in any case event within 48 hours after receiving any Acquisition Proposal from a third party24 hours, advise Parent orally and in writing thereofif any such Acquisition Proposal, including or any inquiry or other contact with any Person with respect thereto, is made. Any such notice to Parent shall indicate in reasonable detail the identity of the Person making such party Acquisition Proposal, inquiry or other contact and the material terms and conditions of any such offerAcquisition Proposal, and the inquiry or other contact, unless doing so would violate a contractual obligation of confidentiality to such Person. The Company shall keep Parent fully informed with respect theretonot release any Person from, or waive any provision of, any confidentiality or standstill agreement, without the prior written consent of Parent. For purposes of this Section 7.10Agreement, “Acquisition Proposal” means any inquiry, offer or proposal for, or any indication of interest in, a merger, consolidation, asset purchase, any of the following (other than the Merger): (i) any direct or indirect acquisition or purchase of all or any portion of the capital stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in equity or ownership interest of the Company, (ii) any respect to the Transactions direct or that otherwise involves any indirect acquisition or purchase of the business, at least 51% all or a material portion of the assets of the Company and its SubsidiariesCompany, taken as a whole(iii) any merger, consolidation or other business combination relating to the Company, or the majority of the capital stock of the Company (iv) any recapitalization, reorganization or any of its Subsidiaries, other than extraordinary business transaction involving or otherwise relating to the TransactionsCompany.
Appears in 1 contract
Exclusivity. The Company Seller agrees that after between the date hereof until Effective Date and the earlier of the Closing or and the termination of this Agreement in accordance with its termsAgreement, it Seller shall not, and it shall cause take all action reasonably necessary to ensure that none of the Company, any of its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all or any of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not toor Representatives shall, directly or indirectly: :
(a) solicit, initiate, consider, knowingly encourage, enter into or knowingly facilitate approve any proposals or encourage the submission of offers from any Acquisition Proposal; Person (bi) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish relating solely to any Person any information with respect to, direct acquisition or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making purchase of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s all or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority portion of the capital stock or other equity or ownership interest of the Company or any of its Subsidiaries or substantially all of the assets of the Company or any of its Subsidiaries, other than Inventory to be sold in the Transactionsordinary course of business consistent with past practice, (ii) to enter into any merger, consolidation or other business combination relating solely to the Company or any of its Subsidiaries or (iii) to enter into a recapitalization, reorganization or any other extraordinary business transaction relating solely to the Company or any of its Subsidiaries (any such proposals or offers described in clause (i)-(iii) above, an “Acquisition Proposal”); or
(b) participate in any discussions, conversations, negotiations or other communications regarding, or furnish to any other Person any information with respect to, or otherwise participate in, knowingly facilitate or knowingly take any other action which would reasonably be expected to lead to, the making, submission or announcement of, any Acquisition Proposal. Seller immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Persons conducted heretofore with respect to any Acquisition Proposal. Seller shall notify Purchasers promptly, but in any event within 24 hours, orally and in writing of the receipt of any Acquisition Proposal. Any such notice to Purchasers shall indicate in reasonable detail the material terms and conditions of such Acquisition Proposal; provided, that such disclosure does not violate the terms of any Contracts or applicable Law. Notwithstanding anything to the contrary set forth in this Agreement, nothing herein shall prohibit, restrict or otherwise limit (i) the Transactions contemplated herein, (ii) any purchase, sale or other transactions involving the publicly traded securities of Seller, (iii) Seller from participating in discussions or negotiations with any Person making a proposal to acquire any assets of, or equity in, Seller or any of its Affiliates other than the Company and its Subsidiaries (a “Seller Proposal”), (iv) Seller or any of its Affiliates other than the Company and its Subsidiaries from providing access to its properties, books and records and furnish information (including by providing access to a data room, whether virtual or actual) to the Person making a Seller Proposal (and to such Person’s Representatives), (v) Seller and Seller’s Representatives from participating in discussions or negotiations with respect to a Seller Proposal, (vi) Seller or Seller’s Representatives from disclosing the existence of this Section 4.06 to any Person who makes an unsolicited acquisition proposal for Seller, the Company or any of their respective Affiliates, Subsidiaries or Representatives, or (vii) advising any Person that a prospective purchaser has been granted exclusivity with respect to an acquisition of the Company.
Appears in 1 contract
Exclusivity. The Company agrees that after During the period from the date hereof until of this Agreement through the earlier of the Closing or the termination of this Agreement in accordance with its terms, it the Company shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries (including for this purpose commonly Controlled Affiliates) not to, directly or indirectly: , (a) solicit, initiate, seek, encourage or knowingly facilitate support any inquiry, proposal or encourage the submission of offer from, furnish any Acquisition Proposal; (b) initiateinformation to, continue or otherwise participate in any discussions or negotiations regardingwith, any corporation, partnership, person or other entity or group (other than Parent and its Subsidiaries and Representatives) regarding any Acquisition Proposal, (b) enter into, continue with or participate in any discussions or negotiations with, or furnish to any Person provide any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Person (other than Parent and its Subsidiaries and Representatives) concerning a possible Acquisition Proposal; Proposal or (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal; provided, however, that prior to delivery of . During the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after period from the date of this Agreement that was not solicited after through the execution earlier of the Closing or the termination of this Agreement and will not be bound in accordance with its terms, upon receipt by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiariescommonly Controlled Affiliates of any offer, proposal, indication of interest, request or inquiry that could reasonably be expected to lead to an Acquisition Proposal, the Company shall within one (1) Business Day (i) notify Parent of its receipt of such Acquisition Proposal and (ii) communicate to Parent in reasonable detail the terms of any such Acquisition Proposal (including providing Parent with a written statement with respect to any non-written Acquisition Proposal received, which statement must include the terms thereof). In addition, the Company will within one (1) Business Day advise Parent of any material modification or proposed modification to such Acquisition Proposal and any other than information necessary to keep Parent informed in all material respects regarding the Transactionsstatus and details of such Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (PLBY Group, Inc.)
Exclusivity. The Company agrees that after From the date hereof of this Agreement until the earlier of the Closing Date or the earlier termination of this Agreement in accordance with its termsAgreement, it the Company and each Seller shall not, and it nor shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause the Company or any Seller directly or indirectly, through any officer, director, employee, representative or agent thereof, (a) solicit or encourage the initiation or submission of any inquiries, proposals or offers regarding any acquisition, merger, take-over bid, sale of all or substantially all of their respective officersthe assets of, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates or sales of capital stock or other securities of the Company or its Subsidiaries, whether or not in writing and whether or not delivered to the shareholders of the Company generally (including by way of a tender offer), or similar transactions involving the Company or its Subsidiaries not to, directly (any of the foregoing inquiries or indirectly: proposals being referred to herein as an “Acquisition Proposal”) or (ab) solicit, initiate, negotiate with respect to or knowingly facilitate or encourage effect any transaction contemplated by an Acquisition Proposal. The Company shall promptly notify the submission Buyer after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company or any Seller in connection with an Acquisition Proposal or for access to the properties, books or records of the Company or that informs the board of directors of the Company that the Person making the request is considering making or has made an Acquisition Proposal; . Such notice to the Buyer shall be made promptly 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. Subject to their fiduciary duties, so long as this Agreement remains in effect and has not been terminated, the board of directors of the Company shall not (bi) initiate, continue withdraw or otherwise participate in any discussions or negotiations regardingmodify, or furnish propose to any Person any information with respect towithdraw or modify, in a manner adverse to the Buyer the approval or recommendation by such board of this Agreement, the agreements contemplated herein or the transactions contemplated hereby, (ii) approve or recommend, or cooperate in any way propose to approve or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead torecommend, any Acquisition Proposal; Proposal (cother than as contemplated in this Agreement) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (diii) enter approve or authorize the entering into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines Proposal (other than as contemplated in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after this Agreement). From the date of this Agreement that was not solicited after until the execution Closing Date or earlier termination of this Agreement and Agreement, no Seller will not be bound by the restrictions set forth abovesell or otherwise transfer, in which caseor grant any option to purchase, Parent will be entitled any of such Seller’s Shares to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.
Appears in 1 contract
Sources: Securities Purchase Agreement (Pernix Therapeutics Holdings, Inc.)
Exclusivity. The Company agrees that after From the date hereof of this Agreement until the earlier of the Closing or and the termination of this Agreement in accordance with its terms, it Parent and Merger Sub shall not, and it shall cause its Subsidiaries and Affiliates and shall use its their reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: (ai) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate facilitate, discuss (with a third party) or encourage the submission of negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Parent Acquisition Proposal; (bii) initiate, continue furnish or otherwise participate in disclose any discussions or negotiations regarding, or furnish non-public information to any Person any information with respect toin connection with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any a Parent Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (diii) enter into any agreement with respect to any Contract regarding a Parent Acquisition Proposal; provided, however, that prior to delivery (iv) prepare or take any steps in connection with an offering of any securities of either Parent of the Written Consent, if the board Merger Sub (or any Affiliate or successor of directors either Parent of the Company determines in good faith that it is required Merger Sub), other than the Private Placements and the issuance of shares of Parent Common Stock as Merger Consideration; or (v) knowingly facilitate or knowingly encourage any effort or attempt by its fiduciary duties any Person to do so, or seek to do any of the board foregoing. Parent shall (A) notify the Company promptly upon receipt of directors may respond to any Person making an Parent Acquisition Proposal after by Parent or Merger Sub, and to describe the date terms and conditions of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Parent Acquisition Proposal from a third party, advise Parent orally and in writing thereof, reasonable detail (including the identity of any Person making such party Parent Acquisition Proposal) and (B) keep the material terms Company reasonably informed on a reasonably current basis of any modifications to such offeroffer or information. Parent shall, and shall cause its Affiliates to, and shall authorize and instruct its Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the Company shall keep Parent fully informed Execution Date with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal forto, or indication of interest which is reasonably likely to give rise to or result in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsParent Acquisition Proposal.
Appears in 1 contract
Exclusivity. 3.1 Following the closing the Purchase Agreement, so long as Atai retains ownership or control of (i) no less than fifty percent (50%) of the Purchased Shares during the one year period following the first closing under the Purchase Agreement and (ii) no less than seventy-five percent (75%) of the Purchased Shares thereafter during the Term of this Agreement, the Company agrees and acknowledges it will not, without Atai's prior written consent: (x) license or sell any Company IP, or perform any services for, any Third Party within the Field anywhere in the world; and/or (y) on its own, or with or on behalf of, any Third Party, engage in the research, development, manufacture or commercialization of any products or services within the Field anywhere in the world (collectively, the "Restrictive Covenants"); provided that the foregoing shall not (a) prevent the Company from fulfilling any non-commercial obligations to any Third Party pursuant to any feasibility study or similar non-commercial agreement already existing as of the LOI Date, but is intended to prohibit the Company from entering into any agreements with any Third Party within the Field after the LOI Date, or (b) restrict or prevent the Company from executing new commercial agreements and conducting research, development, manufacture or commercialization, or engaging in any other activities with regard to the products identified in Schedule 1 hereto, or outside the Field.
3.2 Each Party will promptly notify the other Party upon becoming aware of any infringement or threatened infringement of the Company IP by a Third Party in the Field. The Parties shall co-operate fully in the enforcement of any Company IP. The Company agrees that shall have the first right to enforce the Company IP in all infringement, interference, misappropriation and other claims and proceedings, which it may undertake in its discretion. If the Company does not take steps to enforce the infringement or threatened infringement of the Company IP in the Field within sixty (60) days after the date hereof until that written notice thereof was received from or delivered to the earlier Company, then Atai may take such legally permissible action as it deems necessary or appropriate to undertake such enforcement, which it may undertake in its discretion. The Party enforcing such Company IP (the "Controlling Party") shall keep the other Party (the "Cooperating Party") fully informed of the Closing actions and positions taken or proposed to be taken and the termination of this Agreement in accordance with its termsactions and positions taken by all other parties to such proceedings. If Atai requests the Company to join as a party to any action hereunder, it the Company shall notjoin as a party to that action at Atai's expense, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of if the Company requests Atai to join as a party to any action hereunder, Atai shall join as a party to that action at the Company's expense. Any award paid by any third parties as a result of any actions taken pursuant to this Section 3.2 (whether by way of settlement or otherwise) shall first be applied to the reimbursement of any legal fees and its Subsidiaries not toexpenses incurred by either Party, directly or indirectlyand then the remainder shall be divided between the Parties as follows: (a) solicitAtai shall receive an amount equal to its lost profits or a reasonable royalty on the infringing sales (or whichever measure of damages the court may have applied), initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; then (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish the Company shall receive an amount equal to any Person any information with respect to, or cooperate in any way or take the Manufacturing Fee and any other action knowingly amounts that Company would have received from Atai pursuant to facilitate a Manufacturing Agreement had Atai sold the infringing products or encourage any inquiries or the making of any proposal that constitutesservices rather than infringer, or could be expected to lead to, any Acquisition Proposal; and then (c) grant any waiver or release under any standstill or similar agreement with respect the balance, if any, remaining shall be shared such that seventy-five percent (75%) goes to the Controlling Party and twenty-five percent (25%) goes to the Cooperating Party. The Company will have the sole right to enforce the Company IP in all infringement, interference, misappropriation and other claims and proceedings not related to the Field; and payment of all costs related to any class such actions, including legal fees, will be the responsibility of the Company’s , and the Company shall be entitled to all damages and other amounts that are awarded and monies that are paid by way of settlement of or otherwise arising out of any such claim or proceeding. Each Party will cooperate with the other Party in making available all necessary documents and witnesses for any legal proceedings within the Field, without charging any fees to the other Party.
3.3 Notwithstanding the Restrictive Covenants described in Section 3.1, to the extent that the Company Subsidiaries’ securities; receives a bona fide commercial opportunity within the Field from one or more Third Parties during the Term as evidenced by a signed term sheet (d) enter into any agreement each, a "Business Opportunity"), then the Company shall provide Atai with respect written notice to any Acquisition Proposal; providedpresent such Business Opportunity to Atai (a "Business Opportunity Notice"). In each Business Opportunity Notice, howeverthe Company shall provide all information necessary or desirable in order for Atai to be able to fully evaluate the Business Opportunity, that and Atai shall have 90 days after delivery of such a Business Opportunity Notice to determine whether to consent to the Company pursuing such Business Opportunity. Atai shall be entitled, by delivery of written notice to the Company prior to delivery the end of the Written Consentsuch 90 day period, if the board of directors of to withhold its consent to the Company pursuing a Business Opportunity if Atai determines in good faith that it such Business Opportunity is required by its fiduciary duties competitive to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer products or proposal forservices then being developed or commercialized, or indication of interest inplanned to be developed in the future, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company by Atai or any of its SubsidiariesAssociated Companies. If Atai does not object to such Business Opportunity within such 90 day period, other than including the Transactionsreasons for such good faith objection, then the Company may pursue such Business Opportunity without it being deemed a violation of the Restrictive Covenants.
Appears in 1 contract
Sources: Strategic Development Agreement (IntelGenx Technologies Corp.)
Exclusivity. The Company agrees that after the date hereof until the earlier of Until the Closing occurs or the termination of this Agreement is terminated in accordance with its terms, it shall notand except in connection with the transactions contemplated by the Target Merger Agreement and the Transactions contemplated hereby, Seller will not (and it Seller shall cause its Subsidiaries and controlled Affiliates and shall use its reasonable best efforts to cause all of their respective officersRepresentatives to not), directorssolicit, managersinitiate, employeesnegotiate, investment bankersagree to, attorneysengage in or renew any contact concerning any proposal or offer, accountantsor any contact that would reasonably be expected to result in a proposal or offer, agents, advisors, representatives from any Person (other than the Acquirors and controlled Affiliates their respective Affiliates) relating to any of the Company and its Subsidiaries not to, directly or indirectlyfollowing involving the Acquired Companies: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or recapitalization, (b) a merger or consolidation, (c) an acquisition or purchase of any of the material assets (or any material portion of its assets) of, or any equity interest in, the Acquired Companies, except for the sale of assets in the ordinary course of business consistent with past practice, (d) any similar transaction or business combination outside the ordinary course of business, or (e) any financing, investment, acquisition, purchase, merger, sale or any other similar transaction that is similar in any respect would restrict, prohibit or inhibit the Seller’s ability to consummate the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, contemplated by this Agreement or the majority of the capital stock of the Company or Target Merger Agreement (each, an “Acquisition Proposal”). Seller represents and warrants that all discussions and negotiations relating to any of its Subsidiaries, Acquisition Proposal (other than the Transactionstransactions with the Acquirors contemplated by this Agreement) have been terminated. In the event Seller or the ▇▇▇▇▇▇ receives any unsolicited Acquisition Proposal, Seller shall promptly, and in any event, within forty-eight (48) hours, provide written notice and a copy of such Acquisition Proposal to the Acquirors.
Appears in 1 contract
Sources: Merger Agreement (Platinum Eagle Acquisition Corp.)
Exclusivity. The Company agrees that after (a) From the date hereof of this Agreement until the earlier to occur of the Closing or the valid termination of this Agreement in accordance with its termsterms or the Closing, it Sellers shall not, and it shall cause its Subsidiaries and the Restricted Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: , (ai) solicit, initiate, or knowingly facilitate or knowingly encourage the submission of any Acquisition inquiry, discussion, request, proposal or offer (a “Competing Proposal; ”) that constitutes, or would reasonably be expected to lead to, Competing Transaction, (bii) initiateenter into, continue continue, initiate or otherwise participate in any discussions or negotiations regarding, or furnish to with any Person any information with respect to(other than Purchaser Entities and their Affiliates, Sellers or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal their Affiliates and their respective Representatives) that constitutes, or could would reasonably be expected to lead to, or is otherwise in furtherance of, a Competing Proposal, (iii) agree to or approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or execute or enter into any Acquisition Proposal; (c) grant any waiver letter of intent, memorandum of understanding, agreement in principle, acquisition agreement or release under any standstill other definitive agreement or similar agreement Contract with respect to or relating to any class Competing Transaction, (iv) furnish any non-public information or data relating to or concerning the Business to, or afford access to the properties, books, records, officers or personnel constituting Purchased Assets to, any third party (other than Purchaser Entities or their Affiliates, Sellers or their Affiliates and their respective Representatives) for the purpose contemplated by clause (i) hereof; provided that this shall not prohibit the Sellers from providing to current and potential business affiliates, including customers and potential customers, information of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement nature typically provided in connection with respect potential commercial transactions in the ordinary course of business consistent with past practice to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith extent that it is reasonably expected that the provision of such information will not lead to a Competing Transaction or Competing Proposal, or (v) resolve, commit or agree to do any of the foregoing. Notwithstanding the foregoing, nothing in this Section 7.11 shall restrict or limit any disclosure obligations required by its fiduciary duties to do so, the board of directors may respond to applicable Law or any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms rules of any such offer, and the Company shall keep Parent fully informed with respect theretostock exchange. For the purposes of this Section 7.107.11, “Acquisition ProposalCompeting Transaction” means any inquirysale of any Purchased Assets (in each case, offer or proposal forwhether by merger, or indication of interest in, a mergerreorganization, consolidation, asset purchase, stock purchase, stock exchangerecapitalization, business combination, reorganization, recapitalization, liquidation, dissolution dissolution, share exchange, sale of stock, license, disposition, sale of assets or otherwise) to any third party (other transaction that is similar than to Purchaser Entities and their Affiliates); provided, that, for the avoidance of doubt and notwithstanding anything in any respect this Agreement to the Transactions or that otherwise involves any purchase contrary, in no event shall a Competing Transaction include (and nothing in Section 7.11 shall apply to) a sale of all of the business, at least 51% equity interests in Sellers or all or substantially all of the assets of Sellers; provided, further, that if, in the Company and its Subsidiariescase of such an asset sale, taken as a whole, the Person acquiring all or the majority substantially all of the capital stock assets of Sellers agrees to assume all obligations of the Company or any of its Subsidiaries, other than the TransactionsSellers under this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Progress Software Corp /Ma)
Exclusivity. The In consideration of the time, effort, expense, and other resources the Purchasers have expended and anticipate expending to consummate the transactions contemplated hereby, the Purchasers and the Company agrees that after the date hereof until agree as follows:
(i) Until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, it shall notneither the Company nor any of its Affiliates, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all nor any of their respective officers, directors, managers, employees, investment bankersrepresentatives, attorneysor agents (collectively, accountantsthe "Company Parties") will, agents, advisors, representatives and controlled Affiliates without the prior written consent of the Company and its Subsidiaries not toPurchasers, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate initiate or encourage any inquiries other proposal or the making of any proposal that constitutesoffer from, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) otherwise enter into any agreement with respect other agreements or arrangements (other than this Agreement) with, any other Person (other than the Purchasers), relating to any Acquisition Alternative Transaction Proposal; provided, however, that nothing contained in this paragraph 4G(i) shall prohibit the Board, prior to delivery stockholder approval of the Written Consenttransactions contemplated hereby to the extent required ("Stockholder Approval"), from furnishing information to, or engaging in discussions or negotiations with, any Person that makes an unsolicited bona fide written Alternative Transaction Proposal (which did not otherwise result from a breach of this paragraph 4G) if (A) the board of directors of the Company Board determines in good faith faith, after consultation with and advice from independent outside legal counsel, that it such action is required by necessary for the Board to comply with its fiduciary duties under applicable law, (B) the Alternative Transaction Proposal would reasonably be expected to do soconstitute a Superior Proposal and (C) prior to furnishing such information to, or engaging in discussions or negotiations with, such Person, the board of directors may respond Company receives from such Person an executed confidentiality agreement (which agreement shall be provided to the Purchasers for information purposes) in form and substance reasonably satisfactory to the Special Committee (which shall be no less favorable to the Company than the confidentiality agreement executed by prospective investors in the Company in connection with the transactions contemplated hereby.
(ii) As long as the agreements in this paragraph 4G are in effect, the Company will notify the Purchasers as promptly as practicable after any Company Party learns that any Person making has made any proposal, offer, inquiry or contact with respect to an Acquisition Alternative Transaction Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, (including the identity of such party Person and the material terms of such proposal). The Company represents and warrants to the Purchasers that no Company Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect to an Alternative Transaction Proposal and the Company will keep the Purchasers fully informed of the status and details (including amendments and proposed amendments) of any such offerrequest, Alternative Transaction Proposal or inquiry. The Company further represents and the warrants that no Company shall keep Parent fully informed Party has entered into any executory agreement which has not yet terminated or accepted any commitment with respect theretoto an Alternative Transaction. For purposes Prior to taking any of this Section 7.10the actions referred to in paragraph 4G(i), “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar the Board shall promptly (but in any event within twelve hours) notify the Purchasers orally and in writing of any action it proposes to take with respect to such Alternative Transaction Proposal. After taking any such action, the Transactions or that otherwise involves any purchase Board shall promptly advise the Purchasers orally and in writing of the businessstatus of such action as developments arise or as requested by the Purchasers. Without limiting the foregoing, at least 51% two business days (the "Two Day Period") prior to taking any of the assets actions referred to in paragraph 4G(i), the Board shall notify the Purchasers of any such action it proposes to take and, during the Two Day Period, the Board shall negotiate in good faith with the Purchasers with respect to any revised proposal to acquire the Company's securities that the Purchasers may make prior to or during the Two Day Period.
(iii) Until the earlier of the Company and Closing Date or the termination of this Agreement in accordance with its Subsidiariesterms, taken as a wholeif the Board is entitled to furnish information to, or engage in discussions or negotiations with, any Person on the majority terms contemplated in paragraph 4G(i), the Board may, prior to Stockholder Approval, (i) withdraw, modify or change, or propose to withdraw, modify or change, in a manner adverse to the Purchasers, its approval and favorable recommendation of this transactions subject to Stockholder Approval, (ii) approve or recommend, or propose to approve or recommend, any Alternative Transaction Proposal or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other agreement with respect to an Alternative Transaction Proposal; provided however, that the Board may only take the actions described in clauses (i)-(iii) if (A) such Alternative Transaction Proposal constitutes a Superior Proposal, (B) the Board shall have determined in good faith, after consultation with and advice from independent outside legal counsel, that such action is necessary for the Board to comply with its fiduciary duties under applicable law, (C) the Company has fully complied with paragraph 4G(i) above, and (D) neither the Company nor any of its representatives is in violation of its obligations pursuant to paragraph 4G(i).
(iv) Nothing contained in this Agreement shall prevent the Board from taking, and disclosing to the Company's stockholders, a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to any tender offer; provided, however, that neither the Company nor the Board shall, except as permitted by paragraph 4G(iii) propose to approve or recommend any Alternative Transaction Proposal. Without limiting the foregoing, it is understood and agreed that any violation of the capital stock restrictions set forth in the preceding sentence by any representative of the Company, whether or not acting on behalf of the Company or any of its SubsidiariesSubsidiaries or any of their Affiliates, other than the Transactionsshall be deemed to be a breach of paragraph 4G(iv).
Appears in 1 contract
Sources: Preferred Stock Purchase and Loan Commitment Agreement (Focal Communications Corp)
Exclusivity. The Company agrees that after (a) From the date hereof until the earlier of Shanghai Subsidiaries Closing Date, Dragon Parent and the Closing or the termination of this Agreement in accordance with its terms, it Seller shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all not permit the Company Subsidiaries, or any of their respective officersRepresentatives, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: :
(ai) directly solicit, initiate, seek, entertain, encourage, facilitate, support or knowingly facilitate induce the making, submission or encourage the submission announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; ;
(bii) initiateenter into, participate in, maintain or continue or otherwise participate in any discussions communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or furnish deliver or make available to any Person any non-public information with respect to, or cooperate in any way or take any other direct action knowingly to facilitate regarding, any inquiry, expression of interest, proposal or encourage any inquiries or the making of any proposal offer that constitutes, or could would reasonably be expected to lead to, an Acquisition Proposal;
(iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention to agree to, accept, approve, endorse or recommend) any Acquisition Proposal; or
(c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (div) enter into any agreement letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal.
(b) On the date hereof, Dragon Parent, the Seller and the Company Subsidiaries will: (A) immediately cease any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date hereof with respect to any Acquisition Proposal; providedand (B) not amend, howeverterminate, that prior waive or fail to delivery enforce any provisions of any confidentiality agreement with respect to any potential Acquisition Proposal.
(c) In the event of the Written Consent, if breach by Dragon Parent or the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes Seller of this Section 7.109.17, “Acquisition Proposal” means the Purchaser may, in addition to any inquiryother remedies that it might have, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect terminate this Agreement pursuant to the Transactions or that otherwise involves any purchase Section 8.2(b)(ii). The obligations of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsparties pursuant to this Section 9.17 shall terminate if this Agreement is terminated pursuant to Article VIII.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (TTM Technologies Inc)
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it the Company shall cause require each of its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries agents not to, directly or indirectly: , (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (bi) initiate, continue solicit, encourage or otherwise participate facilitate any inquiry, proposal, offer or discussion with any party (other than the Buyer) concerning any merger, reorganization, consolidation, recapitalization, business combination, liquidation, dissolution, share exchange, sale of stock, sale of material assets or similar business transaction involving the Company, any Subsidiary or any division of the Company, (ii) furnish any non-public information concerning the business, properties or assets of the Company, any Subsidiary or any division of the Company to any party (other than the Buyer) or (iii) engage in any discussions or negotiations regardingwith any party (other than the Buyer) concerning any such transaction. The Company shall immediately notify any party with which discussions or negotiations of the nature described in clause (i) above were pending that the Company is terminating such discussions or negotiations. If the Company receives any inquiry, proposal or furnish offer of the nature described in clause (i) above, the Company shall, within one (1) business day after such receipt, notify the Buyer of its receipt of such inquiry, proposal or offer, including the identity of the other party. Notwithstanding anything to any Person any information with respect tothe contrary in this Section 4.5 or elsewhere in this Agreement, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s Board of Directors or officers shall not be prohibited from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide written proposal to acquire the Company Subsidiaries’ securities; or if (dx) enter into any the Company’s Board of Directors determines in good faith (based upon advice from legal counsel) that such action is required for the Company’s Board of Directors to comply with its fiduciary duties to the Company Stockholders under applicable law, and (y) the Company has obtained from such person a confidentiality agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of on terms the Company determines in good faith that to be no less favorable to the Company than those contained in the confidentiality provisions of the letter of intent dated February 11, 2008 between the Buyer and the Company. If the Board of Directors of the Company receives a proposal of the nature described in the preceding sentence which it is required by determines in good faith to be superior to the Merger (after consultation with its fiduciary duties to do sofinancial advisors and legal counsel), taking into account the board person making such proposal and the likelihood and timing of directors may respond to any Person making an Acquisition Proposal after the date consummation (including financial, legal, regulatory and other aspects of this Agreement that was not solicited after the execution of this Agreement and will not be bound such proposal deemed relevant by the restrictions set forth aboveCompany’s Board of Directors in good faith) and which is not conditioned upon obtaining additional financing (such other proposal, in which casea “Superior Proposal”), Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The (i) the Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereofpromptly so notify the Buyer, including the identity terms of such party Superior Proposal and (ii) the Company’s Board of Directors may withdraw or modify the Company Recommendation, approve or recommend the Superior Proposal or (only after terminating the Agreement pursuant to Section 7.1(f)) enter into an agreement with respect to such Superior Proposal (either of which shall be deemed, for purposes of Section 7.1(g) hereof, a withdrawal of the Company Recommendation) or terminate this Agreement in accordance with Section 7.1(f); provided, that, at least two (2) business days prior to taking any such action, the Company gives written notice thereof to the Buyer, setting forth in reasonable detail, the material terms and conditions of any such offer, Superior Proposal and the Company Buyer shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10not have, “Acquisition Proposal” means any inquirywithin such two (2) business day period, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other proposed an improved transaction that is similar in any respect to the Transactions or Company’s Board of Directors unless the Company’s Board of Directors determines in good faith (after consultation with its financial advisors and legal counsel) that otherwise involves any purchase of such improved transaction proposed by the business, Buyer is not at least 51% of the assets of as favorable to the Company Stockholders as the Superior Proposal. The foregoing notice requirements and its Subsidiaries, taken as a whole, opportunity for the Buyer to respond to such other proposal or offer shall similarly apply to any modification of such other proposal or offer received by the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsCompany.
Appears in 1 contract
Sources: Merger Agreement (Netezza Corp)
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicitThe Company hereby agrees that it will not, nor will it permit any of its Subsidiaries to, nor will it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of it or any of its Subsidiaries to, solicit or initiate, or knowingly facilitate or encourage the submission of, any proposal or transaction for a financing of any Acquisition Proposal; the Company (bother than draws under the Foothill Facility or project financing in the ordinary course of business consistent with past practice) initiateor for the acquisition by a Person other than the Investor or an Affiliate of the Investor of stock or a substantial part of the assets of the Company through a merger or other business combination, continue stock or assets acquisition or otherwise participate (in any discussions such case, an "Alternative Transaction") (or negotiations regarding, or to furnish to any Person any nonpublic information concerning the business, properties or assets of the Company (other than in connection with respect tothe sale by the Company of properties designated for sale in an Approved Business Plan, as required by the Foothill Loan Documents or in connection with project financing (debt or equity) in the ordinary course of business consistent with past practice), or cooperate in any way or take any other action knowingly to otherwise facilitate or encourage any inquiries or the making of any proposal proposal) prior to the Closing. In addition, the Company hereby agrees that constitutesit will, and will cause its Subsidiaries, officers, directors, employees, investment bankers, attorneys and other advisors or representatives to, terminate any other discussions or negotiations with any third party regarding any Alternative Transaction, and that the Company will not, nor will it permit any of its Subsidiaries to, nor will it authorize or permit any officer, director or employee of, or could be expected any investment banker, attorney or other advisor or representative of the Company, or any of its Subsidiaries to lead tohave any additional discussions or negotiations with any third party regarding such an Alternative Transaction prior to the Closing.
(b) Notwithstanding the provisions of Section 6.6(a), any Acquisition Proposal; prior to the Closing, to the extent required by the fiduciary obligations of the Board, as determined in good faith by the Board after receipt of the written advice of its outside counsel and financial advisor, the Company may (ci) grant any waiver or release under any standstill or similar agreement in response to an unsolicited request therefor, furnish information with respect to the Company to the requestor pursuant to a customary confidentiality agreement and discuss such information and the terms of this Section 6.6 (but not the terms of any class possible Alternative Proposal) with such Person and (ii) upon receipt by the Company of an unsolicited Alternative Proposal, following delivery to the Investor of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect notice required pursuant to any Acquisition the last two sentences of this Section 6.6(b), participate in negotiations regarding such Alternative Proposal; provided. Without limiting the foregoing, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board understood that any violation of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive the preceding sentence by any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer director or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets executive officer of the Company and or any of its SubsidiariesSubsidiaries or any investment banker, taken as a wholefinancial advisor, attorney or the majority of the capital stock other advisor to or representative of the Company or any of its Subsidiaries, other than whether or not such person is purporting to act on behalf of the Transactions.Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of Section 6.6
Appears in 1 contract
Sources: Investment Agreement (Atlantic Gulf Communities Corp)
Exclusivity. The Company agrees that after Seller grants to Buyer the exclusive right to acquire the SME Business and the Acquired Assets unless and until this Agreement is validly terminated as provided in Section 8.1. From the date hereof of this Agreement until the earlier to occur of the Closing or Date and the valid termination of this Agreement as provided in accordance with its termsSection 8.1, it Seller shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officersstockholders, directors, managers, employees, investment bankersmanagers and affiliates to not, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiate, encourage, seek, negotiate, discuss or knowingly facilitate accept (or encourage enter into any agreement with respect to) any proposal or offer to invest in, acquire or purchase (directly or indirectly, by way of merger, consolidation, stock purchase, asset purchase or otherwise) (i) substantially all of the submission assets of the Seller that do not constitute the Acquired Assets (the “Non-SME Assets”) (a “Non-SME Asset Sale”), (ii) a majority of, or all of, the outstanding capital stock of Seller (a “Controlling Stock Sale”), or (iii) any Acquisition Proposal; of the Acquired Assets or (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, assist or cooperate participate in, or facilitate in any way other manner any effort or take attempt by any other action knowingly person to facilitate do or encourage seek any inquiries of the foregoing. In the event that Seller receives an unsolicited offer from a third party for a Non-SME Asset Sale or the making of any proposal that constitutes, or could be expected to lead to, any a Controlling Stock Sale (an “Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class ”), Seller will promptly notify Buyer in writing of the Company’s or any Company Subsidiaries’ securities; or identity of the proposed acquiror and the material terms (dincluding price) enter into any agreement with respect to any in the Acquisition Proposal; provided. Notwithstanding anything to the contrary, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth aboveSeller may, in which case, Parent will be entitled response to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any a bona fide unsolicited Acquisition Proposal from a third partyparty that does not otherwise result from a breach of this Agreement, advise Parent orally (x) (i) furnish information with respect to Seller to the person making such Acquisition Proposal and in writing thereof, its representatives (including the identity providing to such person a copy of such party this Agreement and the material terms of any such offerTransition Services Agreement), and (ii) participate in discussions or negotiations with the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “person making such Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company Proposal and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.representatives regarding such Acquisition Proposal and (y)(i)
Appears in 1 contract
Exclusivity. The Company agrees that after From the date hereof Execution Date until the earlier of the Closing or and the termination of this Agreement in accordance with its terms, it Parent and Merger Sub shall not, and it shall cause its Subsidiaries and Affiliates and shall use its their reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: (ai) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate facilitate, discuss (with a third party) or encourage the submission of negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Parent Acquisition Proposal; (bii) initiate, continue furnish or otherwise participate in disclose any discussions or negotiations regarding, or furnish non-public information to any Person any information with respect toin connection with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any a Parent Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (diii) enter into any agreement with respect to any Contract regarding a Parent Acquisition Proposal; provided, however, that prior to delivery (iv) prepare or take any steps in connection with an offering of any securities of either Parent of the Written Consent, if the board Merger Sub (or any Affiliate or successor of directors either Parent of the Company determines in good faith that it is required Merger Sub), other than the issuance of shares of Parent Common Stock as Merger Consideration; or (v) knowingly facilitate or knowingly encourage any effort or attempt by its fiduciary duties any Person to do so, or seek to do any of the board foregoing. Parent shall (A) notify the Company promptly upon receipt of directors may respond to any Person making an Parent Acquisition Proposal after by Parent or Merger Sub, and to describe the date terms and conditions of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Parent Acquisition Proposal from a third party, advise Parent orally and in writing thereof, reasonable detail (including the identity of any Person making such party Parent Acquisition Proposal) and (B) keep the material terms Company reasonably informed on a reasonably current basis of any modifications to such offeroffer or information. Parent shall, and shall cause its Affiliates to, and shall authorize and instruct its Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the Company shall keep Parent fully informed Execution Date with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal forto, or indication of interest which is reasonably likely to give rise to or result in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsParent Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Monterey Capital Acquisition Corp)
Exclusivity. The Company agrees that after the date hereof until Until the earlier of the Closing Date or the date of termination of this the Agreement in accordance with pursuant to the provisions of Section 9.5 below, the Company shall not (nor will the Company authorize or permit any of its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not or affiliates to), directly or indirectly, take any of the following actions: (ai) solicit, initiate, entertain, encourage, participate in, conduct discussions with or knowingly facilitate engage in negotiations with any Person relating to any merger, consolidation or encourage business combination, of or with the submission Company, or any purchase or sale of the Company's capital stock or other equity securities or any purchase or sale of any of the Company's material assets or any exchange offer or tender offer to the shareholders of the Company or other similar transactions (any such transaction being hereafter referred to as an "Acquisition Proposal"); (ii) provide any written or oral information with respect to the Company to any Person (other than as contemplated in this Agreement or required by applicable law) relating to any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (diii) enter into any agreement with respect any Person with regard to any Acquisition Proposal; providedPROVIDED, howeverHOWEVER, that prior nothing contained in this Agreement shall prevent the Company or its board of directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to delivery an Acquisition Proposal; (B) engaging in any discussion or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (C) recommending such an unsolicited bona fide written Acquisition Proposal to the shareholders of the Written ConsentCompany or withdrawing or modifying its recommendation in favor of this Agreement and the Merger in compliance with Section 6.3, if and only to the extent that, in any such case as is referred to in clause (B) or (C), (i) a majority of the members of the board of directors of the Company determines concludes in good faith (after consultation with its financial advisors) that it such Acquisition Proposal is required reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to the Company's shareholders than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), (ii) a majority of the members of the board of directors of the Company concludes in good faith (after consultation with outside counsel) that such action is necessary for the board of directors to act in a manner consistent with its fiduciary duties under applicable law,(iii) prior to do soproviding any information or data to any Person in connection with an Acquisition Proposal by any such Person, such board of directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the confidentiality agreement previously entered into between WEC and the Company in connection with their consideration of the Merger, and (iv) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the board of directors may respond of the Company notifies WEC of such inquiries, expressions of interest, proposals or offers received by, any such information requested from, or any such discussions or negotiations to be initiated or continued with, any Person making an Acquisition Proposal after of the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth aboveCompany's representatives indicating, in which caseconnection with such notice, Parent will be entitled to receive the name of such Person and the terms and conditions of any information provided to such party simultaneously with delivery to any such partyproposals or offers. The Company agrees that it will immediately cease and its Subsidiaries shall promptlycause to be terminated any existing activities, but in discussions or negotiations with any case within 48 hours after receiving parties conducted heretofore with respect to any Acquisition Proposal from Proposal. The Company agrees that it will take the necessary steps to promptly inform the officers, directors and other representatives referred to in the first sentence hereof of the obligations undertaken in this Section 6.12. The Company agrees that it shall keep WEC informed, on a third partycurrent basis, advise Parent orally of the status and in writing thereof, including the identity of such party and the material terms of any such offer, proposals or offers and the Company shall keep Parent fully informed with respect thereto. For purposes status of this Section 7.10, “Acquisition Proposal” means any inquiry, offer such discussions or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsnegotiations.
Appears in 1 contract
Sources: Merger Agreement (Winbond Intl Corp)
Exclusivity. The Company agrees that after (a) During the date hereof until the earlier of the Pre-Closing or the termination of this Agreement in accordance with its termsPeriod, it shall notwithout Purchaser’s prior written consent, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of neither the Company and its Subsidiaries not tonor any Company Subsidiary shall, unless required under applicable Law, directly or indirectly: , take (aand the Company shall not authorize or permit any directors, officers or employees of the Company or, to the extent within the Company’s control, other Affiliates or representatives of the Company or any Company Subsidiary to take) any action to (i) encourage (including by way of furnishing non-public information), solicit, initiate, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal; , (bii) initiateenter into any agreement with respect to any Acquisition Proposal or enter into any agreement, continue arrangement or otherwise understanding requiring it to abandon, terminate or fail to consummate the issuance of the Purchased Shares or any other transaction contemplated by this Agreement or the other Transaction Documents or (iii) participate in any way in discussions or negotiations regardingwith, or furnish to any information to, any Person any information with respect toin connection with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any Acquisition Proposal; (c) grant . Prior to the Closing, the Company shall use reasonable best efforts to take all actions reasonably necessary to ensure that the directors, officers and employees of the Company or any waiver or release under any standstill or similar agreement with respect Company Subsidiary and, to any class of the extent within the Company’s control, other Affiliates or representatives of the Company or any Company Subsidiaries’ securities; Subsidiary, do not take or (d) enter into do any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if actions referenced in the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the immediately foregoing sentence. Upon execution of this Agreement and will not during the Pre-Closing Period, unless the Purchaser otherwise consents in writing, the Company shall, if applicable, cease immediately and cause to be bound terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Company be returned.
(b) During the Pre-Closing Period, and as permitted by applicable Law, the restrictions set forth aboveCompany shall, as promptly as practicable (and in which caseno event later than one business day after receipt thereof), Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving advise the Purchaser of any Acquisition Proposal from a third party, advise Parent orally or any inquiry received by it relating to any potential Acquisition Proposal and in writing thereof, including the identity of such party and the material terms of any proposal or inquiry, including, but not limited to, the identity of the Person and its Affiliates making the same, that it may receive in respect of any such offerAcquisition Proposal or inquiry, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall furnish to the Purchaser a copy of any such proposal or inquiry, if it is in writing, or a reasonably accurate written summary of any such proposal or inquiry, if it is not in writing, and the Company shall keep Parent fully the Purchaser informed on a reasonably prompt basis with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means to any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any developments with respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsforegoing.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier (a) Subject to Section 5.6(c), Seller shall immediately cease and desist and discontinue and cause to be terminated any and all existing activities with respect to any of the Closing or the termination of this Agreement in accordance with its terms, it following and shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: indirectly (a) through any officer, director, former director, affiliate, employee, attorney, accountant, financial advisor, subsidiary, independent representative or independent agent or any other advisor or representative of Seller), solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate (including by way of furnishing information or encourage engaging in discussions or negotiations) any inquiries inquiries, proposals or the making of any proposal offers that constitutesconstitute, or could reasonably be expected to lead toto or relate to an acquisition proposal by another party.
(b) Seller shall notify Buyer promptly of any unsolicited inquiries or proposals received by, any Acquisition such information requested from, or any such discussions or negotiations sought to be initiated or continued with, Seller or any of Seller’s representatives indicating, in connection with such notice, the name of such person, and the material terms and conditions of any inquiries, proposals or offers (a “Proposal; ”). Seller’s notice of a Proposal will be in writing and delivered to Buyer in accordance with Section 9.14 of this Agreement (a “Proposal Notice”).
(c) grant any waiver or release under any standstill or similar agreement For a period of not less than four business days after Seller’s receipt of each Proposal Notice, Seller shall, if requested by Buyer, negotiate in good faith with respect Buyer to amend this Agreement so that the subject Proposal would not, if consummated, result in a transaction that is more favorable to the Seller, from a financial point of view, than the transactions contemplated by this Agreement (a “Former Proposal”). Upon such amendment of this Agreement, the terms and conditions of this Section 5.6 shall again apply to any class of the Company’s inquiry or proposal made by any Company Subsidiaries’ securities; Person who withdraws a Proposal or who made a Former Proposal (after withdrawal or after such time as their proposal is a Former Proposal).
(d) enter into any agreement In response to the receipt of a Proposal that has not been withdrawn after Seller’s compliance with respect to any Acquisition Proposal; providedSections 5.6(b) and 5.6(c), however, that prior to delivery the board of the Written Consent, directors of Seller may terminate this Agreement if the board of directors of the Company determines Seller has concluded in good faith that it faith, following consultation with its outside legal counsel, that, in light of such Proposal, such action is required by necessary in order to comply with its fiduciary duties to do so, obligations under applicable law and Seller pays the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions termination fee set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions8.2.
Appears in 1 contract
Exclusivity. The Company Seller agrees that after during the period between the date hereof until and the earlier of the Closing or and the valid termination of this Agreement in accordance with pursuant to its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective Subsidiaries, Affiliates, officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, employees and other representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: , (ai) solicit, initiate, or propose, knowingly facilitate or encourage (including by way of furnishing information for the submission purposes of any an Acquisition Proposal; ) or accept any inquiry, proposal or offer that constitutes or would reasonably be expected to be an Acquisition Proposal, (bii) initiate, continue or otherwise participate in any discussions discussions, negotiations or negotiations regardingother communications with any potential acquiror or its officers, directors, employees or furnish to other representatives regarding any Person any information with respect toinquiry, proposal or cooperate in any way offer that constitutes or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making be an Acquisition Proposal after the date of this Agreement (except to notify a Person that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means makes any inquiry, offer or proposal forof the existence of the provisions of this Section 6.25), (iii) provide any material non-public information to any Person in connection with any Acquisition Proposal or indication any proposal or offer that would reasonably be expected to be an Acquisition Proposal or (iv) authorize, recommend, propose or enter into any confidentiality agreement, term sheet, letter of interest inintent, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution purchase agreement or other transaction agreement regarding an Acquisition Proposal, in each case other than involving only Purchaser or any of its Affiliates. Seller agrees that is similar in it shall be responsible for any respect to the Transactions action or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or omission by any of its Subsidiaries, Affiliates, officers, directors, employees, or other than representatives acting on its behalf in violation of this Section 6.25. Seller shall notify Purchaser reasonably promptly, in writing, of any Acquisition Proposal. Any such notice to Purchaser shall indicate in reasonable detail the Transactionsidentity of the Person making such Acquisition Proposal and the key terms and conditions thereof. Without the prior written consent of Purchaser, Seller shall not, and shall not permit their Subsidiaries or Affiliates to, release any Person from, or waive any provision of, any confidentiality or standstill agreement in respect of the Business to which Seller or any of its Subsidiaries or Affiliates is a party.
Appears in 1 contract
Exclusivity. The (a) During the Interim Period, the Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries Representatives and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: , (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (bi) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate solicit or encourage (including by way of providing confidential or non-public information) any inquiries inquiries, proposals or the making of any proposal offers that constitutes, constitute or could may reasonably be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class purchase of the Company’s shares or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors other Equity Securities of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the or material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% portion of the assets of the Company and its SubsidiariesSubsidiaries (on a consolidated basis) or any merger, taken as a wholebusiness combination or other similar transaction of the Company or its Subsidiaries (an “Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any Alternative Transaction Proposal or that may reasonably be expected to lead to any such Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any Alternative Transaction Proposal; provided that (x) the majority execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the capital stock Transactions shall not be deemed a violation of this Section 8.03(a) and (y) nothing in this Section 8.03(a) shall be construed to permit the Company (or any of its Subsidiaries) to take any action that is otherwise prohibited or restricted by the terms of this Agreement (including Section 6.01). The Company agrees to promptly notify SPAC if the Company or any of its SubsidiariesRepresentatives or Subsidiaries receive any offer or communication in respect of an Alternative Transaction Proposal, and will promptly communicate to SPAC in reasonable detail the terms and substance thereof, and the Company shall, and shall cause its Representatives and Subsidiaries to, cease any and all existing negotiations or discussions with any person or group of persons (other than SPAC and its Representatives) regarding an Alternative Transaction Proposal. During the Interim Period, the Company will not confidentially submit to or file with the SEC any Registration Statement on Form S-1 or F-1.
(b) During the Interim Period, SPAC shall not, and shall cause its Representatives and the Sponsor not to, directly or indirectly, (i) initiate, solicit or encourage (including by way of providing confidential or non-public information) any inquiries, proposals or offers that constitute or may reasonably be expected to lead to any business combination transaction between SPAC and any other Person (other than the TransactionsCompany) (a “SPAC Alternative Transaction Proposal”), (ii) engage or participate in any discussions, negotiations or transactions with any third party regarding any SPAC Alternative Transaction Proposal or that may reasonably be expected to lead to any such SPAC Alternative Transaction Proposal, or (iii) enter into any agreement or deliver any agreement or instrument (including a confidentiality agreement, letter of intent, term sheet, indication of interest, indicative proposal or other agreement or instrument) related to any SPAC Alternative Transaction Proposal; provided that the execution, delivery and performance of this Agreement and the other Transaction Agreements and the consummation of the Transactions shall not be deemed a violation of this Section 8.03(b). SPAC agrees to promptly notify the Company if SPAC or any of its Representatives or the Sponsor receive any offer or communication in respect of a SPAC Alternative Transaction Proposal, and will promptly communicate to the Company in reasonable detail the terms and substance thereof, and SPAC shall, and shall cause its Representatives and the Sponsor to, cease any and all existing negotiations or discussions with any person or group of persons (other than the Company and its Representatives) regarding a SPAC Alternative Transaction Proposal.
Appears in 1 contract
Exclusivity. The 8.1 In consideration of the actions to be taken and expenses to be incurred by Adherex and the Company in furtherance of this agreement without the prior written consent of the other party (which written consent shall not be unreasonably withheld or delayed), each of Adherex and the Company agrees that until the Effective Time or termination of this Agreement by either party, each shall not solicit or negotiate any offer to buy, or offer to agree to sell, or sell, any of its assets or its shares (except as permitted in Article VI and other than shares issued in financing transaction approved by the Adherex Board or pursuant to the exercise of options, warrants or other rights to purchase securities outstanding as of the date hereof or pursuant to incentive stock options granted after the date hereof until pursuant to Adherex’s incentive stock option plan) or any interest therein and shall not merge or enter into a business combination with or solicit or negotiate any offer to merge or enter into a business combination with or into any corporation or entity other than the earlier other party (each such transaction being referred to as a “Proposed Acquisition Transaction”); provided, that nothing in this clause will in any way limit Adherex or the Company from responding to any proposal of any other person or dealing with (said “dealing with” shall exclude solicitation) any other person in respect of the Closing foregoing that is not solicited by Adherex or the termination of this Agreement Company if in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates the good faith opinion of the Adherex or the Company Board and its Subsidiaries not toin the written opinion of such parties’ outside counsel, directly a failure to do so would represent a breach of fiduciary obligations of the directors of Adherex or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission Company. Each of any Acquisition Proposal; (b) initiate, continue or otherwise participate in Adherex and Company will immediately notify the other if any discussions or negotiations regardingare sought to be initiated, any inquiry or proposal is made, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement is requested with respect to any class Proposed Acquisition Transaction and notify the other of the Company’s terms of any proposal which it may receive in respect of such Proposed Acquisition Transaction, including, without limitation, the identity of the prospective purchaser or acquiring party. Each of Adherex and Company shall provide the other a copy of any Company Subsidiaries’ securities; written offer received in respect of a Proposed Acquisition Transaction.
8.2 Nothing contained in this Article VIII shall prohibit Adherex from taking and disclosing to Shareholders a position contemplated by Rule 14d-9 or (d) enter into 14e-2 promulgated under the Exchange Act or from making any agreement disclosure to the Shareholders if, in the good faith judgment of the Adherex Board, after consultation with respect outside counsel, failure to any Acquisition Proposalso disclose would be inconsistent with its obligations under applicable law; provided, however, that prior that, subject to delivery of the Written Consentpreceding paragraph, if neither Adherex nor the board of directors of the Company determines in good faith that it is required by Adherex Board nor any committee thereof shall withdraw, or propose publicly to withdraw, its fiduciary duties position with respect to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after or the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer Merger or proposal forapprove or recommend, or indication of interest inpropose publicly to approve or recommend, a mergercompeting proposal, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect without providing written notice to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken other parties as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionssoon as reasonably practicable.
Appears in 1 contract
Exclusivity. The Company Following the date hereof, each of the Selling Shareholders agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and nor shall it permit any of its affiliates to, nor shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all it authorize any equityholder, officer, director, employee, accountant, counsel, investment banker, financial advisor or other representative of such Selling Shareholder or any of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not affiliates to, directly or indirectly: (a) , solicit, initiate, or knowingly facilitate initiate or encourage the submission (including by way of any Acquisition Proposal; (bfurnishing information) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, which constitutes or could may reasonably be expected to lead to, a Purchase Proposal (as defined below) from any Acquisition person or entity, or engage in any discussions or negotiations relating thereto or accept any Purchase Proposal; (c) grant . The Selling Shareholder shall, and shall cause its affiliates and representatives to, immediately cease and suspend any waiver existing solicitation, initiation, encouragement, activity, discussion or release under negotiation with any standstill parties conducted heretofore by it or similar agreement any of its affiliates or representatives with respect to any class of the Company’s Purchase Proposal or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect which could reasonably be expected to any Acquisition lead to a Purchase Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10Agreement, “Acquisition Purchase Proposal” means any inquiry, proposal or offer from any person or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, entity (other than the TransactionsFounders and their respective affiliates or representative) concerning any sale, assignment, pledge, transfer or other disposition of any ownership interest, voting power, or investment power in any Sale Shares. In case the Company does not make full payments to the Selling Shareholders as set forth in Schedule 2 before May 20, 2012, the exclusivity stated under Section 5 shall expire upon the choice of the Selling Shareholders.
Appears in 1 contract
Sources: Share Contribution and Purchase Agreement (HQ Global Education Inc.)
Exclusivity. (a) The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates its and shall use its reasonable best efforts to cause all of their respective Subsidiaries' officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives agents and controlled Affiliates of the Company advisors and its Subsidiaries affiliates not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate solicit or encourage the submission of any Acquisition Proposal; (b) initiate, continue inquiries or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information proposals with respect to, or cooperate engage in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutesnegotiations concerning, or could be expected to lead provide any confidential information to, or have any discussions with, any person relating to, any Acquisition Proposal; (c) grant . It shall immediately cease and cause to be terminated any waiver activities, discussions or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that negotiations conducted prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive with any information provided to such party simultaneously with delivery to any such partyparties. The Company and shall promptly advise Compass following the receipt by the Company or any of its Subsidiaries shall promptly, but in any case within 48 hours after receiving of any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, the substance thereof (including the identity of the person making such party Acquisition Proposal), and the material terms advise Compass of any such offer, and the Company shall keep Parent fully informed developments with respect theretoto such Acquisition Proposal immediately upon the occurrence thereof. For purposes of this Section 7.10, “6.6 an "Acquisition Proposal” " means any inquirytender or exchange offer, offer or proposal for, or indication of interest in, for a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution consolidation or other business combination or similar transaction that is similar involving the Company or its Subsidiaries or any proposal or offer to purchase or acquire in any respect to the Transactions manner all or that otherwise involves any purchase a majority of the businessvoting ownership, at least 51% beneficial ownership or right to vote securities in, or a majority of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock deposits of the Company or any of its Subsidiaries, other than the Transactionstransaction contemplated by this Agreement, provided, however, that nothing contained in this Section 6.6 shall prohibit the Board of Directors of the Company from furnishing information to, or entering into discussions, negotiations or an agreement with, any person or entity that makes an unsolicited Acquisition Proposal after the date hereof if, and only to the extent that the Board of Directors of the Company, after consultation with and based upon the written opinion of outside counsel, concludes in good faith that such action is necessary for the Board of Directors of the Company, to comply with its fiduciary duties to its shareholders under applicable law.
Appears in 1 contract
Exclusivity. The Company agrees that after (a) From the date hereof of this Agreement until the earlier of the Closing or and the termination of this Agreement in accordance with its terms, it the Company shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: (ai) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), knowingly facilitate facilitate, discuss (with a third party) or encourage the submission of negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a Company Acquisition Proposal; (bii) initiate, continue furnish or otherwise participate in disclose any discussions or negotiations regarding, or furnish non-public information to any Person any information with respect to(other than to the Parties and their respective Representatives) in connection with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any a Company Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (diii) enter into any agreement with respect to any Contract regarding a Company Acquisition Proposal; provided, however, that prior to delivery (iv) prepare or take any steps in connection with a public offering of the Written Consent, if the board of directors any equity securities of the Company determines in good faith that it is required (or any Affiliate or successor of the Company); or (v) otherwise knowingly facilitate or knowingly encourage any effort or attempt by its fiduciary duties any Person to do soor seek to do any of the foregoing.
(b) The Company shall (i) notify Parent promptly upon receipt of any Company Acquisition Proposal, describing the board terms and conditions of directors may respond to any Person making an such Company Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, reasonable detail (including the identity of the Persons making such party Company Acquisition Proposal, unless the Company is bound by any confidentiality obligation prohibiting the disclosure of such identity) and the material terms (ii) keep Parent reasonably informed on a reasonably current basis of any material modifications to such offeroffer or information. The Company shall, and shall cause its Affiliates to, and shall authorize and instruct its Representatives to, immediately cease any and all existing discussions or negotiations with any Person conducted prior to the Company shall keep Parent fully informed Execution Date with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal forto, or indication of interest which is reasonably likely to give rise to or result in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsAcquisition Proposal.
Appears in 1 contract
Exclusivity. The Company (a) Seller agrees that after unless this Agreement has been terminated as herein provided, neither the Seller, nor its Affiliates, representatives, employees or agents (collectively, "Agents") will, commencing on the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termsand continuing through January 31, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of 1996 (the Company and its Subsidiaries not to"Exclusive Period"), directly or indirectly: , (ai) solicit, initiateencourage or negotiate any proposal (whether solicited or unsolicited) for, or knowingly facilitate execute any agreement relating to, a sale of all or encourage any part of the submission Shares, and Seller and the Agents shall use their best reasonable efforts (subject to the fiduciary obligations of any Agents serving as director of the Company) to prevent, and shall vote all Shares against, a sale of the Company's assets or a sale of any equity or debt security of the Company's or any merger, consolidation, recapitalization or similar transaction involving the Company with any party other than Purchaser (any of the foregoing is referred to as an "Acquisition Proposal"), (ii) subject to the fiduciary obligations of any Agents serving as directors of the Company, provide any information regarding the Company or the Shares to any third party for the purpose of soliciting, encouraging or negotiating an Acquisition Proposal (it being understood that nothing contained in clauses (i) or (ii) above shall restrict Seller or any of its Agents from providing information as required by legal process); or (iii) vote their Shares for any operation of the business of the Company other than in the ordinary course of business, consistent with past practices. For purposes of this Section 7.4 only, the Company shall not be deemed to be an Affiliate of Seller.
(b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or In the making of any proposal event that constitutes, or could be expected to lead to, any Seller does not consummate the Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class as a result of the Company’s or any Company Subsidiaries’ securities; or Seller's breach of Section 7.4(a) hereof, Seller shall be liable to Purchaser for the payment of liquidated damages to Purchaser in the agreed upon amount of One Hundred Thousand Dollars (d) enter into any agreement with respect to any Acquisition Proposal$100,000); provided, however, that prior if Purchaser does not consummate the Acquisition because Seller has sold the Shares to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required due to the request of Commonwealth Associates, or financial accommodations or other arrangements have been made by its fiduciary duties to do so, Commonwealth Associates which have the board effect of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and causing the Company to purchase such Shares or preventing Purchaser from purchasing the Shares from Seller on terms acceptable to Purchaser as contemplated hereby, then Seller shall keep Parent fully informed with respect thereto. For purposes be liable to Purchaser for the payment of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication liquidated damages to Purchaser in the agreed upon amount of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsTwo Hundred Fifty Thousand Dollars ($250,000).
Appears in 1 contract
Exclusivity. (i) From the date of the Initial Closing until the receipt by Purdue from the Company of the Data and Analysis (as defined in subsection 8.4(c)(ii) below) of the Phase 3 clinical trial portion of the Novelos Trials (as defined in the Collaboration Agreement) in the United States (“Exclusive Negotiation Period”), the Company shall not negotiate with any third party other than Purdue for (A) the license or other acquisition of NOV-002 Rights (defined below) in the United States (the “Proposed Transaction”) or (B) any transaction which would terminate the Rights of First Refusal Period set forth in subsection 8.4(c)(iii) below.
(ii) The Company agrees and Purdue agree that after during the date hereof until Exclusive Negotiation Period, neither the earlier Company nor any of the Closing its affiliates, or the termination any of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of or their respective officers, directors, managersofficers, employees, investment bankersfinancial advisors or counsel, attorneys, accountants, agents, advisors, agents or representatives and controlled Affiliates or any other party retained or engaged by the Company or any affiliate of the Company and its Subsidiaries not to assist in the analysis, the arranging, brokering, financing, negotiation or consummation of the Proposed Transaction at any time will (either directly or through any intermediary) solicit, entertain offers or bids from, respond to, directly negotiate with or indirectly: consider any offer, bid or proposal of any other person for a transaction that would conflict with or impede the Proposed Transaction in any respect, or provide any non-public information to any third party in connection with such an offer, bid or proposal except to the extent to respond to unsolicited offers, bids or proposals as required by law, including the fiduciary duties of the Board of Directors of the Company.
(iii) Until the first to occur of (A) such time as the Company is permitted to proceed with the transaction proposed by the Offeror (as defined below) pursuant to Section 8.4(b)(i)(3), or (B) the end of the Right of First Refusal Period, the Company will (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish reasonably cooperate with Purdue to any Person any information with respect to, or cooperate in any way or take any other action knowingly provide access to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class Purdue of the Company’s books and records, and all other relevant documents and data, in each case, to the extent related to the Proposed Transaction, (b) prepare, file, prosecute and maintain all of its patents related to NOV-002 in the United States, and (c) keep Purdue informed, in a timely manner, of material communications, notifications or any Company Subsidiaries’ securities; other information which it receives or provides (ddirectly or indirectly) enter into any agreement with respect to NOV-002 or related patents and intellectual property with any Acquisition Proposal; providedregulatory authority in the United States, howeverincluding, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do sowithout limitation, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement United States Patent and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party Trademark Office and the material terms of United States Food and Drug Administration.
(iv) In the event any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of negotiations between the Company and its SubsidiariesPurdue during such Exclusive Negotiation Period results in a bona fide agreement in principle on terms to be set forth in a definitive agreement, taken the Company will grant Purdue an option, at no cost other than as a wholespecified in such agreement, to enter into such definitive agreement, such option to terminate upon the 30th day, or such longer period as agreed to between the majority Company and Purdue, following the end of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsExclusive Negotiation Period.
Appears in 1 contract
Sources: Securities Purchase Agreement (Novelos Therapeutics, Inc.)
Exclusivity. The Company Borrower hereby agrees that after unless it has obtained the date hereof until the earlier prior written consent of the Lender (which may be granted or refused in the Lender’s sole discretion) to do otherwise, from the Closing or Date through and including the termination of this Agreement in accordance with its termsFacility Maturity Date, it shall will not, and it shall will cause EEF and any of its Subsidiaries and or EEF’s Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly assign, transfer, pledge, convey, sell or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission otherwise dispose of any Acquisition Proposal; (b) initiatePrePrime Receivables, continue or otherwise participate in any discussions or negotiations regarding, or furnish except pursuant to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution terms and provisions of this Agreement and will not be bound by the restrictions set forth aboveother Transaction Documents; provided, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including that the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes provisions of this Section 7.109.12 shall not apply to (i) PrePrime Receivables the inclusion of which as Pledged Receivables hereunder, “Acquisition Proposal” means any inquiryconstitutes or would constitute part of the Overconcentration Amount, offer or proposal forand (ii) PrePrime Receivables (other than Pledged Receivables) at a time when the Loans Outstanding hereunder are equal to the Borrowing Limit (provided, that the Borrower shall have first made a request for an increase in the Facility Limit (without other changes to this Agreement) and such request has been refused by the Lender (with non-acceptance within 45 calendar days of such request deemed for this purpose to constitute a refusal)), and (iii) PrePrime Receivables that constituted Pledged Receivables at the time they were subjected to a Take-Out Securitization and related repayment of Loans in accordance with Section 2.20 and continue to be subject to such Take-Out Securitization, or indication that were sold to an unaffiliated third party as contemplated in Section 2.20, and (iv) up to a maximum of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution 25% (or such other transaction that is similar percentage as may be determined in accordance with the following sentence) of PrePrime Receivables originated in any respect given calendar quarter that would otherwise qualify as Eligible Receivables. In addition, there is to the Transactions be no adverse selection in determining which PrePrime Receivables become Pledged Receivables, or are financed with another financing facility. It is understood that otherwise involves any purchase EEF is making a corresponding undertaking in favor of the business, at least 51% of Borrower under the assets of the Company Transfer and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsContribution Agreement (PrePrime).
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Mru Holdings Inc)
Exclusivity. For purposes of this Agreement, the term "Takeover Proposal" shall mean any proposal for a merger or other business combination involving the Company or any Subsidiary, or for the acquisition of a substantial equity interest in the Company or any Subsidiary, a substantial portion of the assets of the Company or any Subsidiary or a product line or line of business of the Company or any Subsidiary, other than as contemplated by this Agreement. The Company agrees that after the date hereof until the earlier shall promptly advise Purchaser orally and in writing of any "Takeover Proposal" or of any proposal, or inquiry reasonably likely to result in a Takeover Proposal. Each member of the Closing or the termination of this Agreement in accordance with its terms, it Company Group shall not, and it shall cause directly or indirectly, whether through its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountantsStockholders, agents, advisorsrepresentatives, representatives and controlled Affiliates of the Company and its Subsidiaries not or otherwise, engage in any discussions or negotiations with, or provide any non-public information to, directly any person or indirectly: (a) solicitentity making, initiateproposing to make or believed to be contemplating a Takeover Proposal to the Company; provided, or knowingly facilitate or encourage however, that the submission of any Acquisition Proposal; (b) initiateCompany, continue or otherwise its Subsidiaries, and their directors and officers will remain free to participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, assist or cooperate participate in, or facilitate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead tomanner, any Acquisition Proposal; (c) grant effort or attempt by any waiver third party to do or release under seek any standstill or similar agreement with respect of the foregoing to any class the extent required by the fiduciary obligations of the Board of Directors of the Company’s or , as determined in good faith by a majority of the members thereof following the receipt of advice of outside legal counsel. In the event that any such activities result in a Takeover Proposal which the Board of Directors of the Company Subsidiaries’ securities; or reasonably concludes is superior to the transaction contemplated by this Agreement (d) enter into "Superior Proposal"), nothing contained in this Agreement will prevent the Board of Directors of the Company from recommending such Superior Proposal to the Company's Stockholders, and from withdrawing any agreement recommendation of this Agreement and the transactions contemplated hereby. In the event that the Merger contemplated by this Agreement is not consummated because of a Superior Proposal, and the transaction contemplated by the Superior Proposal is not consummated, the Board of Directors of the Company agrees to negotiate in good faith with respect to any Acquisition Proposalthe Purchaser with a view toward consummating a transaction with the Purchaser as contemplated by this Agreement; provided, however, that prior to delivery of the Written Consent, obligation created by this sentence shall not apply if the board of directors of Company has paid Purchaser the Company determines termination fee provided for in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions9.3.
Appears in 1 contract
Sources: Merger Agreement (Tsi Inc /Mn/)
Exclusivity. The Company agrees that after (a) During the date hereof until Interim Period, but only to the earlier extent not inconsistent with the fiduciary duties of the Closing Acquiror Board (as determined by the Acquiror Board in good faith), Acquiror shall not take, nor shall it permit any of its Affiliates or the termination of this Agreement in accordance with its termsRepresentatives to (i) take, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, whether directly or indirectly: (a) , any action to solicit, initiate, or continue, encourage, knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiatefacilitate, continue inquiries regarding or otherwise participate engage in any discussions or negotiations regardingwith, or furnish enter into any agreement, letter of intent, memorandum of understanding or agreement in principle with, or encourage, respond, provide information to or commence due diligence with respect to, any Person (other than the Company, its stockholders or any of their Affiliates or Representatives), concerning, relating to or which is intended or is reasonably likely to give rise to or result in, any offer, inquiry, proposal or indication of interest, written or oral relating to any Business Combination (a “Business Combination Proposal”) other than with the Company, its stockholders and their respective Affiliates and Representatives, (ii) enter into discussions or negotiations with, or provide any non-public information to any person concerning a possible Business Combination Proposal or (iii) enter into any agreements or other instruments (whether or not binding) regarding a Business Combination Proposal. Acquiror shall, and shall cause its Affiliates and Representatives to, immediately cease any and all existing discussions or negotiations with any Person any information conducted prior to the date hereof with respect to, or cooperate which is reasonably likely to give rise to or result in, a Business Combination Proposal.
(b) In addition to the other obligations under Section 7.11, the Acquiror shall promptly (and in any way event within 48 hours after receipt thereof by the Acquiror or take any other action knowingly to facilitate or encourage any inquiries or its representatives) advise the making Company orally and in writing of receipt of any proposal that constitutes, or could be expected to lead toBusiness Combination Proposal by the Acquiror, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement request for information with respect to any class Business Combination Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Business Combination Proposal, the material terms and conditions of such request, Business Combination Proposal or inquiry, and the identity of the person making the same.
(c) The Acquiror agrees that the rights and remedies for non-compliance with this Section 7.11 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to the Company and that money damages would not provide an adequate remedy to the Company’s or any Company Subsidiaries’ securities; or .
(d) enter into any agreement with respect to any Acquisition Proposal; providedFor the avoidance of doubt, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, understood and agreed that the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement covenants and will not be bound by the restrictions set forth above, agreements contained in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.107.11 shall not prohibit Acquiror, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company Affiliates or any of its SubsidiariesRepresentatives from taking any actions in the ordinary course of business that are not in violation of any provision of this Section 7.11 (such as answering phone calls) or informing any Person inquiring about a possible Business Combination Proposal, other than as applicable, of the Transactionsexistence of the covenants and agreements contained in this Section 7.11.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until Until the earlier of the Closing (i) consummation of the Closing, or the (ii) termination of this Agreement in accordance with its termsSection 21 below, it Seller shall not, nor shall it authorize or permit any of its owners, managers, officers or employees to, and it shall cause its Subsidiaries and Affiliates and Seller shall use its commercially reasonable best efforts to cause all any investment banker, financial advisor, attorney, accountant or other representative acting on behalf of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates it or any of the Company and its Subsidiaries subsidiaries not to, directly or indirectly: , (ai) solicit, initiate, or knowingly facilitate initiate or encourage the submission (including by way of any Acquisition Proposal; (b) initiatefurnishing information), continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly designed to facilitate or encourage facilitate, any inquiries or the making of any proposal that constitutes, constitutes a Seller Acquisition Proposal (as defined below) or could be expected to lead to, (ii) participate in any negotiations or discussions regarding a Seller Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10Agreement, “Seller Acquisition Proposal” means any bona fide inquiry, proposal or offer from any person relating to (i) any direct or proposal forindirect acquisition or purchase of any assets or business that constitutes 10% or more of the net revenues, net income or the assets of the Business, (ii) any direct or indirect acquisition or purchase of 10% or more of any class of voting securities of Seller, or indication of interest in, a (iii) any merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other similar transaction that is similar involving Seller, in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, each case other than the Transactionstransactions contemplated by this Agreement (provided that a description of a potential liquidation and dissolution of Seller following the Closing that is included in the Information Statement provided to Seller’s members pursuant to Section 8(l) below shall not constitute a breach of this Section 8(d)). In addition, Seller shall as promptly as practicable advise Globalstar, orally and in writing, of any request for information or of any Seller Acquisition Proposal (and in any case within 24 hours of such request or the receipt of a Seller Acquisition Proposal), the principal terms and conditions of such request or Seller Acquisition Proposal and the identity of the person making such request or Seller Acquisition Proposal. Seller shall keep Globalstar informed of the status and details (including amendments or proposed amendments) of any such request or Seller Acquisition Proposal as promptly as practicable.
Appears in 1 contract
Exclusivity. The Company agrees that From immediately after the date hereof until execution and delivery of this Agreement and through the Closing (or the earlier of the Closing or the termination of this Agreement in accordance with its termspursuant to Article VIII), it shall the Company will not, and it shall the Company will cause its Subsidiaries not to, and will not authorize or permit any of its or their directors, partners, officers, managers, employees, agents, Affiliates or Advisors to, directly or indirectly, take any action to solicit, encourage, support, facilitate, initiate or engage in discussions or negotiations with, or provide any information to, or otherwise cooperate in any way with, or accept any proposal or offer from, any Person (other than Buyer, Merger Sub and their respective Advisors acting in such capacity) concerning any merger or recapitalization involving the Company or its Subsidiaries, any sale of the Common Stock or other equity interests of the Company or its Subsidiaries, any sale of all or a material portion of the assets or equity interests of the Company or its Subsidiaries or any similar transaction involving the Company or its Subsidiaries (other than inventory and equipment sold in the ordinary course of business) (an "Acquisition Transaction"). Upon execution of this Agreement the Company will, and will cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, Affiliates and Advisors to, immediately cease and cause to be terminated any and all negotiations or discussions with any third party regarding any proposal concerning any Acquisition Transaction, including any access to any online or other datasites. From immediately after the execution and delivery of this Agreement and through the Closing (or the earlier termination of this Agreement pursuant to Article VIII), the Company will, and will use reasonable best efforts to cause its Subsidiaries and its and their directors, partners, officers, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives Affiliates and controlled Affiliates of the Company and its Subsidiaries not Advisors to, directly or indirectly: promptly (aand in no event later than 24 hours after receipt thereof) solicit, initiate, or knowingly facilitate or encourage the submission notify Buyer in writing (including by electronic mail) of any proposal, offer, inquiry or notice concerning an Acquisition Proposal; (b) initiate, continue Transaction or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect a proposal relating to any Acquisition Proposal; providedTransaction, however, that prior to delivery or any request for information from a Person in respect of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, Transaction (including the identity of such party and the material terms thereof and a copy of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquirywritten proposal, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction request) that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of received by the Company or any Affiliate, Advisor or representative of its Subsidiariesthe Company. The Company will use reasonable best efforts to keep Buyer informed on a reasonably current basis (and, other than in any event, within 24 hours) of the Transactionsstatus and details of any material modifications to any such proposal, offer or request.
Appears in 1 contract
Exclusivity. The Company agrees that after (a) From the date hereof until the earlier Closing Date or the date this Agreement is terminated and the transactions provided for in this Agreement are abandoned as contemplated by Article VII, except as permitted by Section 6.05, neither Seller nor Cardkey, nor their respective directors, officers, or employees, will directly or indirectly, solicit, or encourage any proposal or offer from any third party relating to the purchase of the Closing Shares or assets of Cardkey or any similar transaction (a "Competing Transaction"), or enter into discussions with, or furnish any information concerning Cardkey to, any such third party in connection therewith. In addition, except as permitted by Section 6.05, neither Buyer nor Seller, nor their respective directors, officers, or employees, will discuss the termination terms of this Agreement in accordance with any third party (other than to its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, financial advisors, representatives attorneys and controlled Affiliates accountants) without the written consent of the Company other party hereto. Subject to the provisions of clause (b) below and its Subsidiaries so long as Seller has not to, directly or indirectly: breached the preceding provisions of this clause (a) solicitor Section 6.05, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; this clause (ba) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making shall not preclude Seller from accepting an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, for a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or Competing Transaction with a purchase price and other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiariesmaterial economic terms, taken as a whole, that are more favorable to Seller than the Purchase Price and other material economic terms of this Agreement, taken as a whole.
(b) If Seller receives an offer or proposal for a Competing Transaction from a third party with a purchase price and other material economic terms that are more favorable on the majority whole to Seller than the Purchase Price and other material economic terms set forth herein and Seller is considering accepting such offer or proposal, Seller will promptly provide Buyer with a copy of such offer or proposal. Upon receipt of such offer or proposal, Buyer has a right of first refusal, which must be exercised within three (3) business days of receiving the offer or proposal, to match the terms and conditions of the capital stock Competing Transaction. If Buyer does not match the offer or proposal within the aforesaid period, then upon written notice from Seller, this Agreement shall terminate and be of no force or effect; provided, however, if Seller has violated the provisions of clause (a) above in any material respect and such violation results in Seller receiving an offer or proposal for a Competing Transaction, Buyer may compel Seller to reject the competing offer or proposal and proceed with the acquisition of the Company or any of its Subsidiaries, other than Shares pursuant to the Transactionsterms and conditions set forth herein.
Appears in 1 contract
Exclusivity. The During the Pre-Closing Period, the Company agrees that after shall not (and the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it Company shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective Affiliates, officers, directors, managers, employees, investment bankers, attorneys, accountants, agentsconsultants, financial advisors, representatives and controlled Affiliates of the Company and its Subsidiaries other agents not to), directly or indirectly: (a) solicit, initiateinitiate or knowingly encourage (including by way of furnishing any information relating to the Company), or knowingly facilitate induce or encourage knowingly take any other action which could reasonably be expected to lead to the making, submission of or announcement of, any proposal or inquiry that constitutes, or could reasonably be likely to lead to, an Acquisition Proposal; (b) initiateother than informing Persons of the provisions contained in this Section 5.5, enter into, continue or otherwise participate in any discussions or any negotiations regarding, regarding any Acquisition Proposal or furnish to any Person any information with respect to, or cooperate in any way or otherwise take any other action to knowingly to facilitate or encourage knowingly induce any inquiries effort or the making of any proposal that constitutes, attempt to make or could be expected to lead to, any implement an Acquisition Proposal; (c) grant approve, endorse, recommend or enter into any waiver or release under any standstill or similar agreement with respect to any class of the Company’s Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the Company Subsidiaries’ securitiesto abandon or terminate its obligations under this Agreement; or (d) enter into agree, resolve or commit to do any agreement of the foregoing. The Company agrees to notify Parent immediately if any Person makes any proposal, offer, inquiry or contact with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after and provide Parent with a description of the date of this Agreement that was not solicited after the execution of this Agreement material terms and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing conditions thereof, including the identity of such party Person. The Company shall immediately cease and cause to be terminated any existing discussions with any Person (other than Parent) concerning any proposal relating to an Acquisition Proposal. With respect to the material Persons with whom discussions or negotiations have been terminated, the Company shall use its reasonable best efforts to obtain the return or destruction of, in accordance with the terms of any applicable confidentiality agreement, any confidential information previously furnished to any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of Person by the Company or any of its Subsidiariesofficers, directors, managers, employees, attorneys, accountants, consultants, financial advisors or other than agents. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which the TransactionsCompany is a party, without the prior written consent of Parent.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicitEach party hereby acknowledges and agrees that it shall not be the exclusive provider of the Services contemplated hereunder to the other, initiate"Associations" (as defined below) or Credit Unions. Each party shall be free to market, provide and sell, and to contract and otherwise arrange to market, provide, and sell its services to third parties; and, accordingly Cavion may contract with or knowingly facilitate otherwise engage another business providing e-commerce marketplaces to the Credit Unions concurrently with the term of this agreement, and BATNET shall be free to market BAM or encourage other e-commerce services to others, including, without limitations, other Credit Unions. Notwithstanding the submission foregoing, nothing in this paragraph shall be construed as to allow either party hereto to contract directly with either party's business "Associations." For purposes of any Acquisition Proposal; this paragraph Associations shall mean, in the case of BATNET, Associations as set forth on Exhibit E, and in the case of Cavion and Credit Unions as set forth on Exhibit F and Exhibit G. Furthermore, BATNET and Cavion hereby acknowledge that both parties hereto have a business understanding that neither party shall actively seek or engage third parties providing the same or similar services as either party to this agreement, during the initial term and subsequent renewal term under this agreement.
(b) initiateDuring the Initial Term, continue or otherwise participate in any discussions or negotiations regardingRenewal Period, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making Cavion shall notify BATNET of any offer, proposal or solicitation to Cavion by any entity wishing to provide Services to Cavion similar to that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release provided by BATNET under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement ("a BATNET Competing Entity"), and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity notify BATNET of such party and offer, proposal or solicitation to allow BATNET to match the material terms of same. BATNET shall have an absolute right to match any such offer, proposal or solicitation (the "Match Contract Terms") and Cavion shall execute an agreement with BATNET to provide services pursuant to the Company Match Contract Terms. If BATNET executes and performs its obligations under the agreement for the Match Contract Terms, Cavion may not enter into an agreement with the BATNET Competing Entity.
(c) During the Initial Term and any Renewal Period, BATNET shall keep Parent fully informed notify Cavion of any offer, proposal or solicitation to BATNET by any entity wishing to obtain services from BATNET similar to that provided to Cavion under this Agreement (a "Cavion Competing Entity"), and shall notify Cavion of such offer, proposal or solicitation to allow Cavion to match the same. Cavion shall have an absolute right to match any such offer, proposal or solicitation (the "Match Contract Terms") and BATNET shall execute an agreement with respect theretoBATNET to provide services pursuant to the Match Contract Terms. For purposes If Cavion executes and performs its obligations under the agreement for the Match Contract Terms, BATNET may not enter into an agreement with the Cavion Competing Entity.
(d) BATNET acknowledges that CAVION has relationships with certain third-party merchants ("Cavion Merchants") that provide services or products related to financial services or Internet access or generate consumer loans, including but not limited to credit unions, credit union leagues, credit union associations, corporate credit unions, internet service providers, auto brokers and buying, services, credit bureaus, mortgage brokers, other mortgage issuers, insurance companies, stock brokerage and investment companies. Any such compensation arrangement with Cavion Merchants is not considered part of this Section 7.10Agreement. Examples of such relationships are described more fully and attached hereto as Exhibit G.
(e) Cavion, “Acquisition Proposal” means any inquiryby entering into this Agreement with BATNET, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect will use reasonable commercial efforts to endorse and recommend the BAM services to the Transactions credit unions. Nevertheless, and notwithstanding the foregoing, both Parties to this Agreement expressly acknowledge, understand and accept that each credit union connected to Cavion's Network must agree to permit BATNET to serve its members through Cavion's Network. Any decision by any credit union not to permit BATNET to provide any services to its members shall be deemed to be outside the control of either BATNET or that otherwise involves Cavion and shall not operate to the detriment of either BATNET or Cavion under any purchase term or provision of the businessthis Agreement, at least 51% each of the assets of the Company which shall remain in full force and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionseffect and shall be enforceable by either Party hereto.
Appears in 1 contract
Exclusivity. The (a) Prior to the Subsequent Common Closing (or such earlier date as the Investor’s obligations to effect the Subsequent Common Purchase is terminated pursuant to Section 2.03(c)), without the Investor’s prior written consent, neither the Company agrees that after the date hereof until the earlier nor any of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not toshall, directly or indirectly: , take (aand the Company shall not authorize or permit any directors, officers or employees of the Company or, to the extent within the Company’s control, other Affiliates or representatives of the Company or any of its Subsidiaries to take) any action to (i) encourage (including by way of furnishing non-public information), solicit, initiate, initiate or knowingly facilitate or encourage the submission of any Acquisition Proposal; , (bii) initiateenter into any agreement with respect to any Acquisition Proposal or enter into any agreement, continue arrangement or otherwise understanding requiring it to abandon, terminate or fail to consummate any of the Transactions or (iii) participate in any way in discussions or negotiations regardingwith, or furnish to any information to, any Person any information with respect toin connection with, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any Acquisition Proposal; (c) grant . Prior to the Initial Closing, the Company shall use reasonable best efforts to take all actions reasonably necessary to ensure that the directors, officers and employees of the Company or any waiver or release under any standstill or similar agreement with respect of its Subsidiaries and, to any class of the extent within the Company’s control, other Affiliates or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock representatives of the Company or any of its Subsidiaries, other do not take or do any of the actions referenced in the immediately foregoing sentence. Upon execution of this Agreement and prior to the Subsequent Common Closing, unless the Investor otherwise consents in writing, the Company shall, if applicable, cease immediately and cause to be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Company be returned.
(b) Prior to the Subsequent Common Closing (or such earlier date as the Investor’s obligations to effect the Subsequent Common Purchase is terminated pursuant to Section 2.03(c)), the Company shall, as promptly as practicable (and in no event later than one business day after receipt thereof), advise the TransactionsInvestor of any Acquisition Proposal, potential Acquisition Proposal, or any inquiry received by it relating to any potential Acquisition Proposal and of the material terms of any proposal or inquiry, including, but not limited to, the identity of the Person and its Affiliates making the same, the consideration that it may receive in respect of any such Acquisition Proposal, potential Acquisition Proposal, or inquiry, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall furnish to the Investor a copy of any such proposal or inquiry, if it is in writing, or a reasonably accurate written summary of any such proposal or inquiry, if it is not in writing, and shall keep the Investor informed on a reasonably prompt basis with respect to any developments with respect to the foregoing.
(c) Notwithstanding the preceding provisions of this Section 5.18, this Section 5.18 shall not apply to any equity issuances or transactions entered into by the Company pursuant to any at-the-market distribution program that the Company may implement from time to time or any equity line of credit program providing for the issuance by the Company from time to time of Common Shares or similar issuances or transactions initiated by the Company in connection with its efforts to raise capital through equity issuances.
Appears in 1 contract
Exclusivity. The Company agrees that after (a) For the period from the date hereof until December 31, 1996 (the earlier of "Exclusivity Period"), neither CyberGate nor the Closing Shareholders shall, nor shall CyberGate or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all Shareholders authorize or permit any of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not affiliates to, directly nor shall CyberGat 44 or indirectly: the Shareholders authorize or permit any officer, director or employee of CyberGate or the Shareholders, or any investment banker, attorney or other adviser or representative of, CyberGate, any of its affiliates or the Shareholders to, (aA) solicit, solicit or initiate, or knowingly facilitate or encourage the submission of, or respond to inquiries or proposals regarding, any takeover proposal (as defined below) with respect to CyberGate or any issuance of equity or debt securities by CyberGate ("proposed securities issuance"), (B) enter into any Acquisition Proposal; agreement, arrangement or understanding with respect to any takeover proposal or proposed securities issuance, or (bC) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Acquisition Proposaltakeover proposal or proposed securities issuance, other than a transaction with ACSI; provided that upon expiration of the Exclusivity Period (or any subsequent 7-day period contemplated by this proviso) the Exclusivity Period shall be extended for an additional 7 days unless either party has provided prior written notice to the other party that it does not desire to so extend the Exclusivity Period.
(b) CyberGate or the Shareholders, as the case may be, will immediately notify ACSI of the occurrence of any takeover proposal or any proposed securities issuance.
(c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10Agreement, “Acquisition Proposal” "takeover proposal" means (A) any inquiry, proposal or offer from any person relating to any direct or proposal forindirect acquisition or purchase of a substantial amount of assets of CyberGate or the Subsidiaries or of any voting securities of, or indication of equity interest in, a CyberGate or the Subsidiaries (including, without limitation, from the Shareholders) or which would require approval under any federal, state or local law, rule, regulation, judgment, injunction or other governmental rule governing or relating to the current or contemplated business operations of CyberGate or the Subsidiaries, or any merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganizationsale of a material portion of the assets, recapitalization, liquidation, dissolution or similar transaction involving CyberGate or the Subsidiaries or any other transaction that is similar in any respect transaction, the consummation of which would reasonably be expected to impede, interfere with, prevent or materially delay the Transactions transactions contemplated hereby or that otherwise involves any purchase which would reasonably be expected to dilute materially the benefits to ACSI of the businesstransactions contemplated hereby and (B) any inquiry, at least 51% proposal or offer from any person relating to any direct or indirect acquisition or purchase, by operation of the assets law or otherwise of the Company and its Subsidiaries, taken as a whole, any beneficial interest in equity securities of CyberGate or the majority of Subsidiaries (or interest therein) beneficially owned by the capital stock of the Company Shareholders or any of its Subsidiaries, other than the Transactionstheir associates or affiliates.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Communications Services Inc)
Exclusivity. The SPAC and the Company agrees that after intend to conduct their respective due diligence on an exclusive basis for sixty (60) days thereafter (“Exclusive Period”). Neither SPAC nor the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall notCompany shall, and it SPAC and the Company shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all not permit any of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: , (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; inquiries that constitute, or that would reasonably be expected to lead to, a Proposed Transaction Proposal (as defined below) from any third-party, (b) initiateengage in, continue or otherwise participate in any discussions or negotiations regardingwith any third-party regarding an Proposed Transaction proposal, or furnish to any Person third-party any non-public information with respect toor afford to any third-party access to the businesses, properties, assets or cooperate personnel or any of its subsidiaries, in any way each case for the purpose of encouraging or take any other action knowingly to facilitate facilitating a Proposed Transaction Proposal or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with any third-party with respect to any Acquisition a Proposed Transaction Proposal; providedprovided that, howeveras long as the parties hereof are still discussing the Proposed Transaction in good faith, that prior to delivery the Exclusive Period shall be automatically extended for one additional 45-day period upon the expiration of the Written Consentinitial 45-day period, if unless either party has given prior written notice to the board of directors of the Company determines in good faith other that it is required by its fiduciary duties does not wish to do so, extend the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such partyExclusive Period. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposed Transaction Proposal” means any inquiryshall, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any (a) with respect to the Transactions Company, mean (i) any acquisition or that otherwise involves purchase by any purchase third-party, directly or indirectly, of the business, at least 51% any shares of the assets any class of the Company and its Subsidiaries, taken as a whole, outstanding voting or the majority of the capital stock equity securities of the Company or any of its Subsidiariessubsidiaries, or any tender offer (including a self-tender) or exchange offer that, if consummated, would result in any third-party beneficially owning any shares of any class of outstanding voting or equity securities of the Company or any of its subsidiaries, (ii) any merger, acquisition, amalgamation, consolidation, business combination, joint venture or other than similar transaction involving the TransactionsCompany or any of its subsidiaries or (iii) any liquidation, dissolution, recapitalization, extraordinary dividend or other significant corporate reorganization of the Company or any of its subsidiaries, and (b) with respect to SPAC, means any “Business Combination”, as defined in SPAC’s amended and restated articles of association, dated February 14, 2025.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it Sellers shall not, and it shall cause its their Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective Affiliates, representatives, officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives directors and controlled Affiliates of the Company and its Subsidiaries agents not to, directly or indirectly: , (a) solicit, initiate, consider, entertain, encourage or knowingly facilitate or encourage accept the submission of any Acquisition Proposal; proposal or offer from any Person (other than Buyers and their Affiliates in connection with the Transactions) relating to the acquisition of the AirCard Business as a separate and stand-alone acquisition or any portion of the Acquired Assets as separate and distinct from the other assets of the Sellers (other than Inventory in the ordinary course of business consistent with past practice), (b) initiate, continue or otherwise participate in any discussions or negotiations (and as of the date hereof, Sellers shall immediately cease any discussions or negotiations that are ongoing) regarding, or furnish to any Person any information with respect to, assist or cooperate participate in, or facilitate in any way other manner any effort or take attempt by any other action knowingly third party to facilitate do or encourage seek any inquiries or of the making of any proposal that constitutesforegoing, or could be expected to lead to, any Acquisition Proposal; (c) grant furnish any waiver confidential information regarding the AirCard Business or release under the Acquired Assets to any standstill third party that is seeking to make, or similar agreement has made, any such proposal or offer. Sellers will notify Buyers promptly, and in any event within twenty-four (24) hours, if any third party makes any proposal, offer, inquiry or contact with respect to any class acquisition of the Company’s AirCard Business as a separate and stand-alone acquisition or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery portion of the Written Consent, if Acquired Assets as separate and distinct from the board of directors other assets of the Company determines Sellers (other than Inventory in good faith that it is required by its fiduciary duties the ordinary course of business consistent with past practice). Sellers shall be deemed to do so, have breached the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means 8.6 if any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company their Subsidiaries or any of its Subsidiariestheir respective Affiliates, representatives, officers, employees, directors or agents takes any action, whether in his or her capacity as such or in any other than the Transactions.capacity, that is prohibited by this Section 8.6. - 61 -
Appears in 1 contract
Exclusivity. The Company agrees that after During the period from the date hereof of this Agreement until the earlier of Effective Time or, if earlier, the Closing or the valid termination of this Agreement in accordance with its termsSection 11.1, it each Major Company Stockholder and the Company shall not, and it shall cause its their respective Subsidiaries and Affiliates not to and shall use its their respective reasonable best efforts to cause all of its and their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: , take any action to:
(a) initiate, solicit, initiateknowingly invite, knowingly encourage, or knowingly facilitate or encourage (including by way of furnishing non-public information relating to the Company Group, other than as permitted by and is furnished in compliance with this Section 7.18) the submission of a Company Acquisition Proposal or the making of any Acquisition Proposal; (b) initiate, continue inquiries or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any requests for information with respect to, or cooperate the making of, any inquiry regarding any proposal or offer that constitutes, or would reasonably be expected to result in or lead to, any Company Acquisition Proposal or authorize or recommend, any Company Acquisition Proposal;
(b) engage in, continue to or otherwise participate in any way in negotiations or take discussions (or agree to engage in, continue to or otherwise participate in any other action knowingly negotiations or discussions) or furnish or provide access to facilitate the business, operations, properties, books and records, personnel or encourage any inquiries confidential information or data of the Company Group, to any Person (or such Person’s Representatives) in connection with, or for the purpose of, facilitating or encouraging the making of any proposal Company Acquisition Proposal or in response to a Company Acquisition Proposal or any proposal, offer or inquiry that constitutes, constitutes or could would reasonably be expected to result in or lead to, any a Company Acquisition Proposal; ;
(c) grant (i) approve, endorse or recommend, or propose publicly to approve, endorse or recommend for approval or authorize the entry of, any waiver Company Acquisition Proposal or release under any standstill (ii) approve, endorse or similar agreement with respect to any class recommend or submit a Company Acquisition Proposal for approval of the stockholders of the Company’s or any Company Subsidiaries’ securities; or ;
(d) accept a Company Acquisition Proposal or execute or enter into into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement (other than an Acceptable Confidentiality Agreement executed in accordance with respect Section 8.1(b)(i)), merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement (i) providing for or relating to any Company Acquisition ProposalProposal or (ii) requiring the Company to abandon, terminate or fail to consummate the Transactions; or
(e) resolve, propose or agree, or authorize or permit any Representative, to do any of the foregoing; provided, however, in each case, that prior nothing in this Section 7.18 shall operate to delivery limit Ardent Leisure’s right to take any action expressly permitted by and taken in compliance with the terms and conditions set forth in Section 8.1. Following the execution of the Written Consentthis Agreement, if the board of directors each Major Company Stockholder and each member of the Company determines in good faith that it is required by Group shall, and shall cause their respective Subsidiaries to and shall use their respective reasonable best efforts to cause its fiduciary duties and their Representatives to do so(x) immediately cease and cause to be terminated any and all existing solicitations, the board of directors may respond to discussions or negotiations with any Person making an Acquisition Proposal after (or their Representatives) that existed prior to or on the date of this Agreement that was not solicited after with respect to any Company Acquisition Proposal (other than with Parent and its Representatives) and (y) immediately terminate all electronic data room access previously granted to any Persons. Each Major Company Stockholder and the execution of this Agreement Company (acting together) shall promptly (and will not be bound by the restrictions set forth abovein any event within 24 hours) notify, in which casewriting, Parent will of their receipt of any Company Acquisition Proposal and, any proposal or offer that constitutes, or would reasonably be entitled expected to receive result in or lead to, any Company Acquisition Proposal, which notice shall include a summary of the material terms and conditions of, and the identity of the Person or group of Persons making, such Company Acquisition Proposal or proposal, offer, or request for information provided to such party simultaneously and, with delivery respect to any such partyproposal or offer, a copy of any written proposal or offer. Each Major Company Stockholder and the Company (acting together) shall promptly (and in any event within 24 hours) keep Parent informed (including by providing a copy of any written amendments or revisions) of any material developments with respect to any such proposal or offer or Company Acquisition Proposal (including any changes or proposed changes thereto). The Company and each Major Company Stockholder agrees that it shall take the necessary steps to promptly inform its Subsidiaries shall promptly, but respective Representatives involved in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and the Transactions of the obligations undertaken in writing thereof, including the identity of such party and the material terms of any such offerthis Section 7.18, and the Company agrees it shall keep Parent fully informed promptly request each Person who has heretofore executed a confidentiality agreement in connection with respect theretosuch Person’s consideration of acquiring such party or any material portion thereof to return or destroy all confidential information heretofore furnished to such Person by or on its behalf in accordance with the terms of any Contract entered into between the Company and such Person. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase Any violation of the business, at least 51% foregoing restrictions by any of the assets Company’s Subsidiaries or by any Representatives of the Company and its Subsidiaries, taken as a whole, or acting on the majority of the capital stock of the Company Company’s behalf or any of its Subsidiaries, other than shall be deemed to be a breach of this Agreement by the TransactionsCompany. Notwithstanding anything in this Section 7.18 to the contrary, prior to, but not after the receipt of, the Australian Approval, in the event that Ardent Leisure is permitted to take any action set forth in Section 8.1(b) in response to an unsolicited bona fide written Acquisition Proposal that has not been withdrawn and did not result, directly or indirectly from a breach of this Section 7.18 or Section 8.1(a), the provisions of this Section 7.18 shall not restrict either Major Company Stockholder, any member of the Company Group or any of their Representatives from participating in and providing reasonable assistance to Ardent Leisure in connection therewith; provided, any such action, participation or reasonable assistance is in compliance with the provisions of Section 8.1; provided, further, in connection with such participation or assistance, in no event shall any Major Company Stockholder, any member of the Company Group or any of their Representatives knowingly facilitate a breach of Section 8.1 by Ardent Leisure, or take any action (whether or not on Ardent Leisure’s behalf or at Ardent Leisure’s direction) that would not be expressly permitted to be taken by Ardent Leisure in accordance with Section 8.1.
Appears in 1 contract
Sources: Merger Agreement (Dave & Buster's Entertainment, Inc.)
Exclusivity. The Company agrees During the Credit Enhancement Term, and until all fees and obligations due to the Developer, together with any interest or arrearage, are paid to Developer in full, and while any obligation of Developer under the Financing Documents remains outstanding:
(a) Developer shall be the exclusive pre-Commencement Date provider of the construction and loan assistance services described herein with respect to the Project except to the extent any court of competent jurisdiction shall finally determine that after any other party has rights with respect to the date hereof Project which are superior to those of Developer.
(b) During the term of this Agreement, Developer will have a right of first refusal to (i) be the exclusive developer of any future developments, including but not limited to, future casinos, hotels, entertainment facilities, and gaming-related facilities for the Tribe or any of the Affiliates which are identified by Tribe or become the subject of discussions or negotiations with Developer (collectively "Future Projects"), and (ii) to provide consulting services or to serve in a similar capacity with respect to all of the Future Projects, provided that this subparagraph shall be deemed void and stricken if the NIGC determines that it in any way renders this Agreement to be a Management Contract under IGRA, and provided, further, that, as to any permanent casino project, the rights granted to Developer herein shall be subject to any enforceable rights granted in the Sonoma Falls Documents to the developer or manager therein, unless and until the earlier parties thereto shall terminate the Sonoma Falls Documents or consent to or waive any inconsistency with this Agreement, or any court of competent jurisdiction shall finally determine that the Sonoma Falls Documents do not constitute a binding agreement of the Closing or the termination of this Agreement parties thereto enforceable in accordance with its terms. If Developer desires to exercise its right of first refusal, it shall notmust do so in writing within sixty (60) days after submission by Tribe to Developer of any third party bona fide contract, consulting or similar offer regarding the Future Projects ("Future Project Documents"). This right of first refusal does not grant Developer the right to manage any other gaming operations of the Tribe. The Tribe covenants to act in good faith and negotiate all Future Project Documents accepted by Developer and in which it is a party, on a reasonable basis, and it shall cause its Subsidiaries and Affiliates and shall to use its reasonable best efforts to cause all expedite seeking BIA or NIGC approval of their respective officerssuch Future Project Documents to the extent such approval is required under the Legal Requirements.
(c) Subject to the preceding subparagraph, directorsDeveloper and the Tribe both agree that unless a court of competent jurisdiction finally determines that the tribe is obligated to proceed under the Sonoma Canyon Documents or the Sonoma Falls Documents, managersnone of Developer, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates Tribe nor any of the Company and its Subsidiaries not toTribe's Affiliates will, directly or indirectly: (a) solicit, initiateby any means whatsoever, or knowingly facilitate or encourage develop any Gaming facilities that will reduce the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries Gross Revenues or the making amount of any proposal that constitutesGaming devices or machines currently located at the Facility, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class without the written consent of the Company’s other party; provided that nothing shall restrict Developer or any Company Subsidiaries’ securities; its affiliates from placing games or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines gaming devices in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided or providing services related to such party simultaneously with delivery to placement at any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a facility owned by an unaffiliated third party, advise Parent orally provided such facility is outside the boundaries of Marin, Sonoma, Napa, Mendocino and in writing thereof, including Lake Counties (the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions"Preference Area").
Appears in 1 contract
Sources: Development and Loan Agreement (River Rock Entertainment Authority)
Exclusivity. The Company agrees that (a) From and after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termspursuant to Article 7 (Termination), it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of neither the Company and nor the Stockholders’ Representative will, nor will it authorize or permit any of its Subsidiaries not respective Representatives or Stockholders to, directly or indirectly: , (ai) solicit, initiate, seek, entertain, encourage, facilitate, support or knowingly facilitate induce the making, submission or encourage the submission announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (bii) initiateenter into, participate in, maintain or continue or otherwise participate in any discussions communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or furnish deliver or make available to any Person any non-public information with respect to, or cooperate in any way or take any other action knowingly to facilitate regarding, any inquiry, expression of interest, proposal or encourage any inquiries or the making of any proposal offer that constitutes, or could would reasonably be expected to lead to, an Acquisition Proposal; (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (div) enter into any agreement letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal; or (v) submit any Acquisition Proposal (other than the Merger to the extent contemplated by this Agreement) to the vote of any Stockholders of the Company. The Company and the Stockholders’ Representative will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date hereof with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors . If any Representative or Stockholder of the Company determines or the Stockholders’ Representative, whether in good faith his or her capacity as such or in any other capacity, takes any action that it the Company or the Stockholders’ Representative is required obligated pursuant to this Section to cause such Representative or Stockholder not to take, then the Company or the Stockholders’ Representative shall be deemed for all purposes of this Agreement to have breached this Section.
(b) The Company or the Stockholders’ Representative, as the case may be, shall immediately notify APC orally and in writing after receipt by the Company or the Stockholders’ Representative (or, to the Knowledge of the Company or the knowledge of the Stockholders’ Representative, by any of its fiduciary duties respective Representatives or Stockholders), of (i) any Acquisition Proposal; (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to do solead to, the board of directors may respond to an Acquisition Proposal; (iii) any other notice that any Person is considering making an Acquisition Proposal after Proposal; or (iv) any request for nonpublic information relating to the date Company or for access to any of this Agreement the properties, books or records of the Company by any Person other than APC not in the ordinary course of business consistent with past practice or that was not solicited after the execution of this Agreement and will Company or the Stockholders’ Representative reasonably believes would not be bound by expected to lead to an Acquisition Proposal. Such notice shall describe (1) the restrictions set forth aboveterms and conditions of such Acquisition Proposal, in which caseinquiry, Parent will be entitled to receive any information provided to such party simultaneously with delivery to expression of interest, proposal, offer, notice or request; and (2) the identity of the Person or Group making any such partyAcquisition Proposal, inquiry, expression of interest, proposal, offer, notice or request. The Company and its Subsidiaries the Stockholders’ Representative shall promptlykeep APC fully informed of the status and details of, but and any modification to, any such inquiry, expression of interest, proposal or offer and any correspondence or communications related thereto and shall provide to APC a complete and correct copy of such inquiry, expression of interest, proposal or offer and any amendments, correspondence and communications related thereto, if it is in writing, or a reasonable written summary thereof, if it is not in writing. The Company shall provide APC with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company’s board of directors) of any case within 48 hours after receiving meeting of the Company’s board of directors at which the Company’s board of directors is reasonably expected to discuss any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. Proposal.
(c) For purposes of this Section 7.104.9, the definition of “Acquisition ProposalRepresentatives” means any inquiryprovided in Annex A hereto shall be deemed to also include direct and indirect partners, offer or proposal formembers, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase stockholders and investors of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsapplicable party referenced therein.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of Prior to the Closing Date, or the termination of until this Agreement is terminated in accordance with its terms, it Seller shall not, and it Seller shall cause its Subsidiaries Bank not to, and Affiliates and Seller shall use its all reasonable best efforts to cause all of their Seller’s and Bank’s respective officers, employees, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, agents or representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) , solicit, initiateencourage, facilitate or initiate discussions or engage in negotiations with, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any provide information with respect to, or cooperate authorize any financial advisor or other Person to solicit, encourage, facilitate or initiate discussions or engage in negotiations with, or provide information to, any Person (other than Purchaser or a Purchaser Representative) concerning any potential sale of capital stock of, or merger, consolidation, combination, sale of assets, reorganization or other similar transaction involving, Bank; provided that the foregoing shall not prevent such activities to the extent related solely to Excluded Assets or Excluded Liabilities. Until this Agreement is terminated in accordance with its terms, Seller shall promptly (and in any way event within two (2) Business Days after receipt thereof by Seller or take any other action knowingly to facilitate or encourage any inquiries or the making Affiliate) advise Purchaser orally and in writing of any proposal that constitutes, or could be expected to lead toof the kind described in this Section 5.4 (including the proposed terms thereof), any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement request for information with respect to any class of the Company’s such proposal, or any Company Subsidiaries’ securities; or (d) enter into any agreement inquiry with respect to any Acquisition Proposal; provided, however, that prior to delivery or which could result in a proposal of the Written Consentkind described in this Section 5.4; provided that Seller shall have no such obligations with respect to proposals, if requests or inquiries solely with respect to Excluded Assets or Excluded Liabilities. Notwithstanding anything contained herein to the board of directors of contrary, Purchaser and Seller agree that the Company determines in good faith sole right and remedy for noncompliance with this Section 5.4 is to have such provision specifically enforced by any court having equity jurisdiction; it being acknowledged and agreed that it is required by its fiduciary duties any such breach will cause irreparable injury to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement Purchaser and that was not solicited after the execution of this Agreement and money damages will not be bound by the restrictions set forth above, in which case, Parent will be entitled provide an adequate remedy to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsPurchaser.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of Until this Agreement has been terminated in accordance with its terms, each Party agrees that it shall will not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all any of their respective affiliates, representatives, officers, directors, managersagents or stockholders not to, employees(a) enter into any arrangement, agreement, understanding or negotiations with respect to a possible Target Acquisition, with any other Person, including Target (other than with respect to the Target Acquisition), nor (b) enter into any agreement, arrangement, understanding or negotiations with any other Person, including Target (other than with respect to the Target Acquisition), with respect to (i) the acquisition of only the Nonwoven Business or only the Apparel Fabric Business, or any portion of the assets, operations, business or any securities of Target or any similar transaction, however structured, or (ii) the investment bankersin any other Person (other than through DTA or an affiliate of PGI or TIG formed for the purpose of the Target Acquisition) formed for any such purpose; provided, attorneysthat in the event this Agreement is terminated pursuant to clause (c) of Section 14 below, accountantsthe provisions of the first sentence of this Section 1 shall survive for two months following the date of such termination. Following the consummation of the Target Acquisition, PGI agrees that until the termination of this Agreement it will not, and shall cause its representatives, officers, directors, agents, advisorsstockholders or controlled affiliates, representatives and controlled Affiliates including Target, not to provide any non-public information to any Person in connection with any offer or proposal to acquire all or any portion of the Company assets, operations, business, or securities related to the Apparel Fabric Business. PGI will not and its Subsidiaries following consummation of the Target Acquisition will cause Target not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement, arrangement or understanding requiring it to abandon or terminate the Transaction (other than any agreement, arrangement or understanding with any governmental or regulatory body or agency). Each of PGI and GL represents to the other Party that neither is party to or bound by any agreement with respect to any the Target Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines other than this Agreement. The term "Person" in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled interpreted broadly to receive include, without limitation, any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptlycorporation, but in any case within 48 hours after receiving any Acquisition Proposal from a third partycompany (including limited liability company), advise Parent orally and in writing thereofpartnership, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer joint venture or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsindividual.
Appears in 1 contract
Exclusivity. The Except for the sale of Company agrees that after Shares pursuant to this Agreement, the date hereof until Sellers will not (and the earlier of Sellers will cause the Closing or Company, its officers and directors and Sellers' and the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their Company's respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: ) (ai) solicit, initiate, or knowingly facilitate initiate or encourage the submission of any Acquisition Proposal; , (bii) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any confidential information with respect to, assist or cooperate participate in, or facilitate in any way other manner any effort or take attempt by any person or other action knowingly entity to facilitate make or encourage consummate, an Acquisition Proposal, or seek to do any inquiries of the foregoing, or the making (iii) sell or otherwise dispose of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; of their Company Shares (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; interest therein) or (d) enter into any arrangement or agreement with respect to providing for the consummation of any Acquisition Proposal; providedProposal or otherwise relating to their Shares, howeverexcept that this clause (iii) shall not prohibit the disposition of Company Shares by any Seller to a trust established by such Seller for the benefit of such Sellers' heirs, provided that prior the trustee and all beneficiaries of such trust shall agree to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided terms of this Agreement applicable to such party simultaneously with delivery Seller and, to the extent applicable, the Stockholder Agreement and deliver an instrument in writing satisfactory to Buyer and its counsel evidencing such agreement, and provided further that any such partydisposition shall not relieve such Seller of its obligations, including indemnification obligations, under this Agreement or the Stockholder Agreement. None of the Sellers will vote their Company Shares in favor of any Acquisition Proposal, except as contemplated by this Agreement. The term "Acquisition Proposal" means any proposal for a merger or other business combination or similar transaction involving the Company and its Subsidiaries shall promptly, but or for the acquisition of a substantial equity interest in any case within 48 hours after receiving any Acquisition Proposal (including Company Shares purchased from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer Seller) or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% substantial part of the assets of the Company and its Subsidiaries, taken as a whole, or the majority Company. The Sellers shall promptly provide written notice to Buyer of the capital stock receipt of any Acquisition Proposal, and any proposal, inquiry or contact with any person or other entity with respect thereto, and shall, in any such notice, indicate in reasonable detail the identity of the Company or any offeror and principal terms and conditions thereof and keep Buyer informed promptly of its Subsidiaries, other than the Transactionsstatus thereof.
Appears in 1 contract
Exclusivity. The Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective the officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries (collectively, the “Covered Persons”) not to, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s 's or any Company Subsidiaries’ ' securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided. Without limiting the generality of the foregoing, howeverthe Company shall, that and shall use its reasonable best efforts to cause its Subsidiaries and all other Covered Persons to (A) immediately cease and cause to be terminated any existing activities, including discussions or negotiations with any Person, conducted prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond date hereof with respect to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means , (B) immediately notify any inquiry, offer party with which such discussions or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.negotiations were being held of
Appears in 1 contract
Exclusivity. The Company agrees that after (a) During the date hereof until the earlier Exclusivity Period (as defined below), neither CDI nor any of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all subsidiaries nor any of their respective officers, directors, managersemployees or representatives (including any investment banker, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates attorney or accountant retained by CDI or any of the Company and its Subsidiaries not tosubsidiaries) will, directly or indirectly: , (aI) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate engage in any discussions or negotiations regardingconcerning the sale or other disposition of all or a substantial portion of the Company, whether by sale or disposition of securities, merger, sale of assets or otherwise, other than the Potential Acquisition with AE (any such sale or disposition, an “Acquisition Proposal”), or furnish otherwise initiate, solicit or knowingly encourage, assist or facilitate any effort relating to an Acquisition Proposal or any Person any inquiry, proposal or request for information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could reasonably be expected to lead to, any or result in, an Acquisition Proposal; , or (cII) grant engage in any waiver discussions with, or release under furnish any standstill or similar agreement with respect to any class of the Company’s information concerning CDI or any Company Subsidiaries’ securities; of its subsidiaries to, any third party who has made, or (d) enter into any agreement with respect to any Acquisition Proposal; providedin response to, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal or any inquiry, proposal or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in this letter agreement, if at any time after the date hereof and prior to the consummation of a Potential Acquisition, CDI receives an unsolicited written Acquisition Proposal (which Acquisition Proposal was made after the date of this Agreement that was letter agreement and did not solicited after the execution results from a material breach of this Agreement and will not be bound by the restrictions set forth aboveletter agreement), in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company CDI and its Subsidiaries shall promptlyrepresentatives may, but subject to compliance with this paragraph and prior written notice to AE at ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, engage in any case within 48 hours after receiving any negotiations or discussions with, or furnish information and reasonable access to, the third party (including such third party’s representatives) making such Acquisition Proposal from if CDI determines in good faith, after consultation with its outside legal counsel and financial advisor, and based on information then available, that such Acquisition Proposal constitutes or could reasonably be expected to lead to or result in a proposal that is more favorable to the stockholders of CDI than the Potential Acquisition.
(c) Notwithstanding anything to the contrary contained in this letter agreement, CDI may, following the receipt of an Acquisition Proposal and with prior written notice to AE at ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ and ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇, contact the third party (including such third party, advise Parent orally ’s representatives) making such Acquisition Proposal to (i) clarify and in writing thereof, including understand the identity of such party terms and the material terms of any such offer, and the Company shall keep Parent fully informed conditions thereof to facilitate CDI’s determination with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions foregoing paragraph or that otherwise involves any purchase (ii) inform such third party of the business, at least 51% provisions of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsthis letter agreement.
Appears in 1 contract
Sources: Exclusivity Agreement (Cdi Corp)
Exclusivity. The Company agrees that (a) From and after the date hereof of this Agreement until the earlier of the Closing Date or the termination of this Agreement in accordance with its termspursuant to Article X, it Seller shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: (a) solicit, initiatesolicit offers from, or knowingly facilitate in any manner initiate or encourage the submission of any proposal of, any third party relating to the Purchased Equity or all or substantially all of the Purchased Assets, including any acquisition structured as a tender offer, exchange offer, merger, consolidation, or share exchange (such proposals, announcements or transactions being called herein “Acquisition Proposal; Proposals”).
(b) initiateNotwithstanding the foregoing, continue or otherwise if the members of the Board of Directors of Seller reasonably believe that the following is necessary for the purpose of fulfilling their fiduciary duties, Seller, the Companies and their respective directors, officers and managers may participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, assist or cooperate participate in, or facilitate in any way or take other manner any Acquisition Proposal initiated by any other action knowingly to facilitate or encourage any inquiries or the making of any Person that has (i) made a bona fide proposal that constitutesthe Seller reasonably believes constitutes a Superior Proposal, and (ii) entered into a confidentiality agreement on terms substantially similar to the agreement executed by Seller and Buyer, but allows Seller to comply with this Agreement. Seller shall be permitted to direct its officers and other employees, agents, advisors and counsel to cooperate with and be reasonably available to consult with any such third party under the circumstances described in this Section 8.10. Notwithstanding anything to the contrary in this Agreement, Seller’s rights under this Section 8.10(b) and under Section 8.10(d) shall terminate and be of no further force or could be expected effect at 11:59 p.m. Eastern time on April 3, 2007 (the “End Time”), and any and all activities, if any, of Seller, the Companies and their respective directors, officers and managers that were previously occurring pursuant to lead to, and in accordance with this Section 8.10(b) shall immediately cease at the End Time.
(c) Seller will notify Buyer as promptly as practicable (but in any event within 48 hours) after receipt of any Acquisition Proposal; , or any material modification of or material amendment to any Acquisition Proposal, or if Seller or any of its Affiliates conduct any discussions or negotiations concerning any Acquisition Proposal.
(cd) grant any waiver or release under any standstill Seller may enter into a letter of intent, memorandum of understanding, acquisition agreement or similar agreement in connection with respect any Superior Proposal and terminate this Agreement if and only if (i) Seller exercises these rights prior to the End Time specified in Section 8.10(b), (ii) the Board of Directors approves the Superior Proposal, (iii) Seller has complied with this Section 8.10, (iv) at least five business days have passed from the date Buyer received the notice set forth in Section 8.10(c), (v) Seller provides Buyer written notice of its decision to accept the Superior Proposal, and (vi) with the notice identified in the preceding clause Seller delivers to Buyer the Termination Fee.
(e) Seller will, and will cause its Subsidiaries and their respective officers, directors, agents and representatives to, immediately cease and cause to be terminated any class of the Company’s existing discussions or negotiations with any Company Subsidiaries’ securities; or Persons (dother than Buyer and its representatives) enter into any agreement conducted heretofore with respect to any Acquisition Proposal; provided. Seller agrees not to, howeverand to cause its Subsidiaries not to, release any third party from the confidentiality and stand still provisions of any agreement to which Seller or its Subsidiaries is a party or becomes a party. Seller will use reasonable efforts to ensure that prior to delivery the officers, directors and all employees agents and representatives of the Written Consent, if the board of directors Seller or its Subsidiaries are aware of the Company determines restrictions in good faith that it is required by its fiduciary duties this Section 8.10 as reasonably necessary to do so, the board avoid violations thereof. Any violation of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth abovein this Section 8.10 by any officer, in which casedirector, Parent employee, agent or representative (including any investment banker, financial advisor, attorney, accountant, or other retained representative) of the Seller will be entitled deemed to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from be a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes breach of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to 8.10 by the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsSeller.
Appears in 1 contract
Sources: Acquisition Agreement (Tekelec)
Exclusivity. The Company agrees that after (a) From the date hereof of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its termsthe Agreement, it the Company and the Sellers shall not, and it shall cause not cause, authorize or permit any of its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of or their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates (including any Subsidiary of the Company and Company) or any of its Subsidiaries not or their respective investment bankers or Representatives to, directly or indirectly: , (ai) encourage, solicit, initiate, or knowingly facilitate or encourage the submission of any continue inquiries regarding an Acquisition Proposal; (bii) initiate, continue or otherwise participate in any enter into discussions or negotiations regardingwith, or furnish to provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any information agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. The Company and the Sellers shall immediately cease, and shall cause their respective Affiliates (including any Subsidiary of the Company) investment bankers and Representatives to immediately cease, all existing discussions or negotiations with any Persons with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, an Acquisition Proposal.
(b) To the extent not prohibited by existing contractual restrictions, in addition to the other obligations under this Section 5.15, the Company or one of the Sellers shall promptly (and in any event within two (2) Business Days after receipt thereof) advise Buyer orally and in writing of any Acquisition Proposal; (c) grant , any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement request for information with respect to any Acquisition Proposal; provided, howeveror any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, that prior to delivery the material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. same.
(c) The Company and its Subsidiaries each of the Sellers agree that the rights and remedies for noncompliance with this Section 5.15 shall promptlyinclude having such provision specifically enforced by any court having equity jurisdiction, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally it being acknowledged and in writing thereof, including the identity of such party and the material terms of agreed that any such offer, breach or threatened breach shall cause irreparable injury to ▇▇▇▇▇ and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect money damages would not provide an adequate remedy to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsBuyer.
Appears in 1 contract
Exclusivity. The Company (a) ICT Holdco agrees that after that, as and from the date hereof until through the earlier of of: (i) the Closing or Date; and (ii) the termination of this Agreement in accordance with Agreement, subject to the written consent of North Sur, ICT Holdco shall not nor permit any of its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective or ICT Subco’s officers, directors, managers, employees, investment bankers, attorneys, accountants, agentsconsultants, advisors, representatives and controlled Affiliates of the Company and representatives, agents or other parties acting on its Subsidiaries not tobehalf, directly or indirectly: (a) to solicit, initiate, knowingly encourage, cooperate with or knowingly facilitate (including by way of furnishing any non-public information or encourage entering into any form of agreement, arrangement or understanding) the submission submission, initiation or continuation of any Acquisition Proposal; (b) initiate, continue oral or otherwise participate in any discussions written inquiries or negotiations proposals or expressions of interest regarding, constituting or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class activity, arrangement or transaction or propose any activities or solicitations in opposition to or in competition with the Transaction, and without limiting the generality of the Company’s foregoing, not to sell any of the ICT Assets or the ICT Business or induce or attempt to induce any Company Subsidiaries’ securities; other person to initiate any shareholder proposal or “takeover bid,” exempt or otherwise, within the meaning of the Securities Act (d) enter into Alberta), for securities or ICT Assets, nor to undertake any agreement transaction or negotiate any transaction which would be or potentially could be in conflict with respect the Transaction, including, without limitation, allowing access to any Acquisition Proposal; providedthird party to conduct due diligence, however, that prior nor to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or permit any of its Subsidiariesofficers or directors to authorize such access, except as required by statutory obligations. In the event ICT Holdco, including any of its or ICT Subco’s officers or directors, receives any formal written form of offer or inquiry, ICT Holdco shall forthwith (in any event within one business day following receipt) notify North Sur of such offer or inquiry and provide North Sur with such details as it may request.
(b) North Sur agrees that, as and from the date hereof through the earlier of: (i) the Closing Date; and (ii) the termination of this Agreement, subject to the written consent of ICT Holdco, it shall not nor permit any of its officers, directors, employees, consultants, advisors, representatives, agents or other than parties acting on its behalf, to solicit, initiate, knowingly encourage, cooperate with or facilitate (including by way of furnishing any non-public information or entering into any form of agreement, arrangement or understanding) the Transactionssubmission, initiation or continuation of any oral or written inquiries or proposals or expressions of interest regarding, constituting or that may reasonably be expected to lead to any activity, arrangement or transaction or propose any activities or solicitations in opposition to or in competition with the Transaction, and without limiting the generality of the foregoing, not to sell any of the North Sur Assets or North Sur’s business or induce or attempt to induce any other person to initiate any shareholder proposal or “takeover bid,” exempt or otherwise, within the meaning of the Securities Act (Alberta), for securities or North Sur Assets, nor to undertake any transaction or negotiate any transaction which would be or potentially could be in conflict with the Transaction, including, without limitation, allowing access to any third party to conduct due diligence, nor to permit any of its officers or directors to authorize such access, except as required by statutory obligations. In the event the North Sur, including any of its officers or directors, receives any formal written form of offer or inquiry, North shall forthwith (in any event within one business day following receipt) notify ICT Holdco of such offer or inquiry and provide ICT Holdco with such details as it may request.
Appears in 1 contract
Sources: Amalgamation Agreement
Exclusivity. The Company agrees that after (a) During the date hereof until the earlier of the Pre-Closing or the termination of this Agreement in accordance with its termsPeriod, it shall Parent and Seller will not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of nor will Parent nor Seller authorize or permit the Company and or any of its Subsidiaries not Affiliates or Representatives to, directly or indirectly: , (ai) solicit, initiate, seek, or knowingly facilitate entertain, encourage, facilitate, support or encourage induce the making, submission or announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (bii) initiateenter into, participate in, maintain or continue or otherwise participate in any discussions communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or furnish deliver or make available to any Person any non-public information with respect to, or cooperate in any way or take any other action knowingly to facilitate regarding, any inquiry, expression of interest, proposal or encourage any inquiries or the making of any proposal offer that constitutes, or could would reasonably be expected to lead to, an Acquisition Proposal or (iii) agree to, accept, approve, endorse or recommend (or publicly propose or announce any intention or desire to agree to, accept, approve, endorse or recommend) any Acquisition Proposal; . Parent and Seller will immediately cease and cause to be terminated any and all existing activities,
(cb) grant any waiver or release under any standstill or similar agreement with respect to any class Without limiting the effectiveness of the Company’s or any Company Subsidiaries’ securities; or (dSection 4.8(a) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which caseParent and/or Seller shall, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptlywithin 24 hours, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent notify Purchaser orally and in writing thereofafter receipt by the Company, including Parent or Seller or, to Seller’s Knowledge, any of their Affiliates (or, to Seller’s Knowledge, by any of its respective Representatives), of (i) any Acquisition Proposal, (ii) any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal, or (iii) any other notice that any Person is considering making an Acquisition Proposal. Such notice shall describe (1) the terms and conditions of such Acquisition Proposal, and (2) the identity of the Person or group (as such party term’s meaning set forth in Section 13(D) of the Securities Exchange Act of 1934, as amended, the rules and the material terms of regulations thereunder and related case law) making any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions.
Appears in 1 contract
Exclusivity. The Company agrees that after between the date hereof until of this Agreement and the earlier of the Closing or and the termination of this Agreement in accordance with its termsAgreement, it the Company shall not, and it shall cause its Subsidiaries and its and their respective Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: (a) solicit, initiate, knowingly encourage or knowingly facilitate accept any proposal or encourage the submission of any offer that constitutes an Acquisition Proposal; Proposal or (b) initiate, continue or otherwise participate in any discussions discussions, conversations, negotiations or negotiations other communications regarding, or furnish to any other Person any information with respect to, or otherwise cooperate in any way way, assist or take any other action knowingly to participate in, facilitate or knowingly encourage any inquiries or the making of submission of, any proposal that constitutes, or could would reasonably be expected to lead to, any an Acquisition Proposal; (c) grant . The Company immediately shall cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any waiver or release under any standstill or similar agreement Persons conducted heretofore with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect foregoing, and, to any Acquisition Proposal; provided, however, that the extent not done prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after Agreement, shall request all such Persons to promptly return or destroy all confidential information regarding the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries previously delivered thereto. The Company shall notify Parent promptly, but in any case event within 48 hours after receiving any Acquisition Proposal from a third party24 hours, advise Parent orally and in writing thereofif any Acquisition Proposal, including or any inquiry or other contact with any Person with respect thereto, is made. Such notice to Parent shall indicate in reasonable detail the identity of the Person making such party Acquisition Proposal, inquiry or other contact and, to the extent the Company has Knowledge thereof, the terms and the material terms conditions of any such offerAcquisition Proposal, inquiry or other contact. The Company shall not, and shall cause its Subsidiaries not to, release any Person from, or waive any provision of, any confidentiality or standstill agreement related to any potential or actual Acquisition Proposal to which the Company shall keep Parent fully informed with respect theretoor any of its Subsidiaries is a party, without the prior written consent of Parent. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or any indication of interest in, a merger, consolidation, asset any of the following (other than the Merger and the other transactions contemplated hereby): (i) any direct or indirect acquisition or purchase, stock purchasein one transaction or a series of transactions, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution of (A) all or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority portion of the capital stock of the Company or any of its Subsidiaries (other than pursuant to Options or AMACAI Options) or (B) assets of the Company or any of its Subsidiaries (other than inventory or other assets to be sold to customers in the ordinary course of business consistent with past practice), (ii) any merger, consolidation or other business combination relating to or involving the Company or any of its Subsidiaries, or (iii) any recapitalization, reorganization or any other than extraordinary business transaction involving or otherwise relating to the TransactionsCompany or any of its Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Neustar Inc)
Exclusivity. The Company agrees that after the date hereof until the earlier Neither Seller nor Access Plans will (and Seller and Access Plans will not cause or permit AHS or any of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not to, directly or indirectly: ) (ai) solicit, initiate, or knowingly facilitate or encourage the submission of any Acquisition Proposal; proposal or offer from any Person relating to the acquisition of any capital stock or other voting securities, or any substantial portion of the assets, of AHS or any of its Subsidiaries (bincluding any acquisition structured as a merger, consolidation, or share exchange) initiate, continue or otherwise (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, assist or cooperate participate in, or facilitate in any way other manner any effort or take attempt by any other action knowingly Person to facilitate do or encourage seek any inquiries or of the making of any proposal that constitutes, or could be expected to lead to, foregoing. Seller and Access Plans shall notify Buyer promptly if it receives any Acquisition ProposalProposal or request for any confidential information or data or if any negotiations or discussions concerning an Acquisition Proposal are sought to be initiated or continued with Seller or Access Plans; however, nothing in this Agreement will prohibit the Access Plans board of directors (cor Access Plans’ officers, directors, employees or agents) grant from furnishing information to or entering into discussions or negotiations with any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any person that makes an unsolicited Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the Access Plans board of directors of the Company determines in good faith that it that action is required by for it to comply with its fiduciary duties to do sostockholders imposed by law and the proposal is a Superior Acquisition Proposal (as defined below), but the Access Plans board of directors may respond to any Person making not approve or recommend an Acquisition Proposal after the date Proposal, or withdraw or modify its approval or recommendation of this Agreement Agreement, unless that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such partyproposal is a Superior Acquisition Proposal. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10As used herein, “Superior Acquisition Proposal” means a bona fide Acquisition Proposal made by a third party that the Access Plans board (or a duly constituted committee thereof) determines in good faith, after consultation with its financial advisor, to be more favorable to Access Plans’ stockholders than the transactions contemplated by this Agreement and that the Access Plans board (or any inquiry, offer or proposal for, or indication such committee) determines is reasonably capable of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect being consummated. If Seller and Access Plans terminate this Agreement due to the Transactions receipt of a Superior Acquisition Proposal, Access Plans shall pay to Buyer on the date this Agreement is terminated cash in an amount equal to the greater of $250,000.00 or that otherwise involves any purchase twenty-five percent (25%) of the business, at least 51% of difference between the assets of aggregate consideration to be received under the Company Superior Acquisition Proposal and its Subsidiaries, taken as a whole, or this Agreement (the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactions“Break-Up Fee”).
Appears in 1 contract
Exclusivity. Until the earlier of the Closing and such time as this Agreement is terminated in accordance with Article 10, except for the transactions contemplated by this Agreement, Seller and the Company will not, and the Company will cause the Company Group, and direct their respective Representatives not to, directly or indirectly, (i) solicit, initiate or engage in discussions with, or enter into any agreement with, any Person concerning any Acquisition Proposal or (ii) furnish to any Person any confidential information relating to any member of the Company Group or its business or take any other action regarding any inquiry, expression of interest, proposal or offer in each case that would reasonably be expected to facilitate or encourage, an Acquisition Proposal. Upon execution of this Agreement, the Company and Seller shall immediately cease and cause to be terminated any existing direct or indirect discussions with any Person (other than Buyer) that are in respect of an Acquisition Proposal and of which the Company or Seller is aware. The Company agrees shall promptly notify Buyer in writing that after it has received an Acquisition Proposal or any request for nonpublic information or any other inquiry in connection with or that would reasonably be expected to lead to an Acquisition Proposal, or for access to the date hereof properties, books, or records of the Company Group or Seller by any person or entity that informs the Company Group or Seller that it may consider making an Acquisition Proposal together with a copy of any written Acquisition Proposal or such request or inquiry made by a third party and indicate the identity of the Person making the Acquisition Proposal, request or inquiry, and if any such Acquisition Proposal, request or inquiry is not in writing, detail the consideration to be paid and provide a written summary of all material terms and conditions of such Acquisition Proposal, request or inquiry in reasonable detail. If requested by ▇▇▇▇▇, the Company shall inform ▇▇▇▇▇ of the then current status and details of any material modifications to any such proposal, offer or request. If the Company Group or Seller receives notice of any material modifications to such Acquisition Proposal, such modified Acquisition Proposal shall be a new Acquisition Proposal and the provisions of the preceding sentence shall apply mutatis mutandis. For the avoidance of doubt, until the earlier of the Closing or the termination of and such time as this Agreement is terminated in accordance with its termsArticle 10, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Seller may not to, directly or indirectly: (a) solicit, initiate, indirectly transfer any Shares or knowingly facilitate commit to or encourage the submission of obligate itself to transfer any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the TransactionsShares.
Appears in 1 contract
Sources: Share Purchase Agreement (PTC Inc.)
Exclusivity. The (a) During the Pre-Closing Period, the Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates each Subsidiary of the Company not to and shall not authorize or permit any of its Subsidiaries not representatives to, directly or indirectly: , (ai) solicit, initiate, seek, entertain, knowingly encourage, knowingly facilitate, support or knowingly facilitate induce the making, submission or encourage the submission announcement of any inquiry, expression of interest, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; , (bii) initiateenter into, participate in, maintain or continue or otherwise participate in any discussions communications (except solely to provide written notice as to the existence of these provisions) or negotiations regarding, or furnish deliver or make available to any Person any non-public information with respect to, or cooperate in any way or take any other action knowingly to facilitate regarding, any inquiry, expression of interest, proposal or encourage any inquiries or the making of any proposal offer that constitutes, or could would reasonably be expected to lead to, an Acquisition Proposal, (iii) agree to, accept, approve, endorse or recommend any Acquisition Proposal; , (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (div) enter into any agreement letter of intent or any other Contract contemplating or otherwise relating to any Acquisition Proposal, (v) submit any Acquisition Proposal to the vote of any Company Stockholder or (vi) engage in the further preparation for (including by engaging any underwriter or other third party) or otherwise take any steps in furtherance of any initial public offering. The Company will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Persons conducted prior to or on the date of this Agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors . If any authorized representative of the Company determines in good faith takes any action that it the Company is required by its fiduciary duties obligated pursuant to do sothis Section 5.2 to cause such representative of the Company not to take, then the board of directors may respond to any Person making an Acquisition Proposal after the date Company shall be deemed for all purposes of this Agreement that was not solicited after the execution of to have breached this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. Section 5.2.
(b) The Company agrees that it will immediately cease and its Subsidiaries shall promptlycause to be terminated any existing activities, but in discussions or negotiations with any case within 48 hours after receiving parties conducted heretofore with respect to any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its SubsidiariesAffiliates shall, taken as and shall cause each of its representatives to, immediately terminate access to any online “data room” and promptly request each Person (other than Parent and its Affiliates and its and their respective representatives) that has executed a whole, or the majority of the capital stock of confidentiality agreement relating to the Company or any of its SubsidiariesAffiliates and representatives in connection with such Person’s consideration of an Acquisition Proposal, other than to return (or if permitted by the Transactionsapplicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
Appears in 1 contract
Exclusivity. The Company agrees that From and after the date hereof of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall each of the Seller and the Company will not, and it shall cause nor will either authorize or permit any of its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managersAffiliates, employeesEmployees, agents or any investment bankersbanker, attorneys, accountants, agents, advisors, representatives and controlled Affiliates attorney or other advisor or representative (or any of the Company and its Subsidiaries not their respective Affiliates) to, directly or indirectly: :
(a) take any action to initiate, solicit, initiatefacilitate, encourage or knowingly facilitate induce the making, submission or encourage the submission announcement of any Acquisition Proposal; ;
(b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any nonpublic information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could may reasonably be expected to lead to, any Acquisition Proposal; ;
(c) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal;
(d) amend or grant any waiver or release under any standstill or similar agreement with respect to any class equity securities of the Company’s Company (a "Standstill Agreement"); or
(e) approve, endorse or recommend any Acquisition Proposal; The Company Subsidiaries’ securities; will immediately cease any and all existing activities, discussions or negotiations with any parties (dother than Purchaser) enter into any agreement conducted heretofore with respect to any Acquisition Proposal; provided. The Company shall notify Purchaser immediately (but in any event within 48 hours) after receipt by the Company (or any of its advisors) of any Acquisition Proposal, howeveror of any request for information relating to the Company for access to the properties, that prior to delivery of the Written Consent, if the board of directors books or records of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person for the purpose of making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such partyProposal. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent provide such notice orally and in writing thereof, including and shall identify the identity of such party terms and the material terms conditions of any such offer, and the Acquisition Proposal or request for information. The Company shall will keep Parent fully Purchaser informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, on a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar prompt basis (but in any respect to the Transactions or that otherwise involves any purchase event within 48 hours) of the business, at least 51% material developments (including amendments or proposed amendments) of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionssuch Acquisition Proposal request.
Appears in 1 contract
Exclusivity. The Company agrees that From and after the date hereof of this Agreement until the earlier of the Closing or the Effective Time and termination of this Agreement in accordance with its termsArticle 9 hereof (the “Exclusivity Period”), it shall not, and it shall cause its Subsidiaries and Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries not towill not, directly or indirectly: (a) solicit, initiate, or knowingly facilitate or encourage the submission through any of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a wholedirector, officer, employee, Affiliate or the majority of the capital stock agent of the Company or any of its Subsidiaries, other than or otherwise, take any action to solicit, initiate, seek, entertain, encourage or support any inquiry, proposal or offer from, furnish any information to, or participate in any negotiations with, any third party regarding any acquisition of the TransactionsCompany or any of its Subsidiaries, any merger or consolidation with or involving the Company or any of its Subsidiaries, or any acquisition of any material portion of the stock or assets or the Company or any of its Subsidiaries. The Company agrees that, in no event, will the Company accept or enter into an agreement concerning any such third party acquisition transaction during the Exclusivity Period. The Company will notify Parent immediately after receipt by any director or officer of the Company, or by any Affiliate, employee or agent to which the Company has Knowledge, at any time during the Exclusivity Period of any unsolicited proposal for, or inquiry respecting, any third party acquisition transaction involving the Company or any of its Subsidiaries or any request for nonpublic information in connection with such a proposal or inquiry, or for access to the properties, books or records of the Company or any of its Subsidiaries by any person, or entity that informs the Company or any of its Subsidiaries that it is considering making, or has made, such a proposal or inquiry. Such notice to Parent will indicate the identity of the person making the proposal or inquiry but need not specify the terms and conditions of such proposal or inquiry. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 6.1 by any Subsidiary, director, officer, employee, Affiliate or agent of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 6.1 by the Company.
Appears in 1 contract
Exclusivity. The (a) During the Pre-Closing Period, the Company agrees that after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its terms, it shall not, and it shall cause its Subsidiaries and its and their respective Affiliates and shall use its reasonable best efforts to cause all of their respective officers, directors, managers, employees, investment bankers, attorneys, accountants, agents, advisors, representatives and controlled Affiliates of the Company and its Subsidiaries Representatives not to, directly or indirectly: , (ai) solicit, initiate, encourage, induce or knowingly facilitate the making, submission or encourage the submission announcement of any proposal relating to an Acquisition Transaction (an “Acquisition Proposal; (b”) initiate, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or cooperate in any way or take any other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could would reasonably be expected to lead to, any to an Acquisition Proposal; , (cii) grant any waiver or release under any standstill or similar agreement with respect to any class of the Company’s or any Company Subsidiaries’ securities; or (d) enter into any agreement with respect to any Acquisition Proposal; provided, however, that prior to delivery of the Written Consent, if the board of directors of the Company determines in good faith that it is required by its fiduciary duties to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive furnish any information provided to such party simultaneously with delivery to any such party. The Company and its Subsidiaries shall promptly, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of regarding the Company or any of its SubsidiariesSubsidiaries to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) engage in any discussions or negotiations with any Person with respect to a potential Acquisition Transaction or an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition Transaction. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of or the taking of any action inconsistent with any of the restrictions set forth in the preceding sentence by any of its Subsidiaries or any of its or their respective Affiliates or Representatives, whether or not such Affiliate or Representative is purporting to act on its behalf, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(b) The Company shall promptly (and in no event later than forty-eight (48) hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent in writing of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry or indication of interest, and the material terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent reasonably informed with respect to the status of any such Acquisition Proposal, inquiry or indication of interest and any modification or proposed modification thereto. Promptly following the execution and delivery of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective Affiliates and Representatives to, immediately cease and cause to be terminated any existing discussions with any Person (other than the TransactionsParent and its Affiliates and Representatives) that relate to any Acquisition Proposal or potential Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Exclusivity. The Company agrees that (a) From and after the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with its termsAgreement, it Company shall not, and it shall cause its Subsidiaries each Subsidiary and Affiliates and shall use its reasonable best efforts to cause all each of their respective officers, directors, managersofficers, employees, investment bankers, attorneys, accountants, agents, financial advisors, representatives and controlled Affiliates of the Company and its Subsidiaries agents not to, directly or indirectly: , (ai) solicit, initiate, engage or knowingly facilitate participate in or encourage the submission of any Acquisition Proposal; (b) initiate, continue or otherwise participate in any discussions discussion or negotiations regardingwith any Person or entity (other than Purchaser) concerning any merger, consolidation, sale of material assets, tender offer for, recapitalization of or accumulation or acquisition of securities issued by Company or any Subsidiary, proxy solicitation, other business combination involving Company or any Subsidiary or any other plan of reorganization of Company or any Subsidiary (including, without limitation, any Employee Stock Ownership Plan structure) (collectively, "Alterative Transaction"), or furnish (ii) provide any non-public information concerning the business, properties or assets of Company or any Subsidiary to any Person any information with respect or entity (other than to Purchaser). Company shall, and shall cause each of its Subsidiaries to, or cooperate in immediately cease any way or take and all existing activities, discussions and negotiations with any Person other action knowingly to facilitate or encourage any inquiries or the making of any proposal that constitutes, or could be expected to lead to, any Acquisition Proposal; (c) grant any waiver or release under any standstill or similar agreement than Purchaser with respect to any class Alternative Transaction and the Company shall, and shall cause its Subsidiaries to, continue indefinitely the confirmation hearing for their pending reorganization and liquidation plans involving an Employee Stock Ownership Plan. Company shall immediately notify Purchaser of, and shall disclose to Purchaser all details of, any inquiries, discussions or negotiations described in the first sentence of this Section 6.10. The provisions of this Section 6.10 are referred to in this Agreement as the "Exclusivity Provisions."
(b) Notwithstanding the provisions of subsection (a) above, prior to entry of the Company’s Confirmation Orders, the Debtors may, to the extent required by the Bankruptcy Code, the Bankruptcy Rules, the operation and information requirements of the Office of the United States Trustee, or any orders entered or approvals or authorizations granted by the Bankruptcy Court in the Case during the period prior to Closing (collectively, the "Bankruptcy Related Requirements"), or to the extent that the board of directors of Company Subsidiaries’ securities; determines, in good faith after consultation with outside legal counsel, that such board's fiduciary duties under applicable Governmental Rule require it to do so, participate in discussions or negotiations with, and, subject to the requirements of subsection (dc) enter into any agreement with respect below, furnish information to any Acquisition Person, entity or group after such Person, entity or group has delivered to the Debtors, in writing, an unsolicited bona fide offer to effect an Alternative Transaction that the board of directors of Company in its good faith judgment determines, after consultation with its independent financial advisors, would result in a transaction more favorable to the stakeholders of the Debtors from a financial point of view than the transactions contemplated hereby and for which financing, to the extent required, is then committed (or which, in the good faith judgment of the board of directors, is reasonably capable of being obtained) and which (in the good faith judgment of the board of directors) is likely to be consummated (a "Superior Proposal"). In the event the Debtors receive a Superior Proposal, nothing contained in this Agreement (but subject to the terms hereof) will prevent the board of directors of Company from approving such Superior Proposal or requesting authorization of such Superior Proposal from the Bankruptcy Court, if such board determines, in good faith, after consultation with outside legal counsel, that such action is required by its fiduciary duties under applicable Governmental Rule; and in such case, the board of directors of Company may terminate this Agreement pursuant to Section 11.1(f) hereof; provided, however, that prior to delivery Company shall not terminate this Agreement until at least five (5) Business Days after Purchaser's receipt of a copy of such Superior Proposal.
(c) Debtors shall, within one (1) Business Day of the Written Consentoccurrence thereof, if the board of directors notify Purchaser orally and in writing of the receipt of a Superior Proposal. Such notice to Purchaser shall indicate in reasonable detail the identity of the potential acquirer and the material terms and conditions of such Superior Proposal, to the extent known.
(d) Notwithstanding anything to the contrary in this Section 6.10, Company determines in good faith that it is required by shall not, and shall cause each of its fiduciary duties Subsidiaries not to, provide any non-public information to do so, the board of directors may respond to any Person making an Acquisition Proposal after the date of this Agreement that was not solicited after the execution of this Agreement and will not be bound by the restrictions set forth above, in which case, Parent will be entitled to receive any information provided to such a third party simultaneously with delivery to any such party. The unless: (i) Company and its Subsidiaries shall promptlyprovide such non-public information pursuant to a non-disclosure agreement entered into subsequent to the date hereof with terms regarding the protection of confidential information at least as restrictive as such terms in the Confidentiality Agreement or pursuant to confidentiality agreements existing on the date hereof; and (ii) such non-public information has been delivered previously or made available to Purchaser.
(e) Notwithstanding anything to the contrary in this Section 6.10, but in any case within 48 hours after receiving any Acquisition Proposal from a third party, advise Parent orally and in writing thereof, including the identity of such party and the material terms of any such offer, and the Company shall keep Parent fully informed with respect thereto. For purposes be permitted to continue the solicitation of this Section 7.10, “Acquisition Proposal” means any inquiry, offer or proposal for, or indication expressions of interest in, a merger, consolidation, asset purchase, stock purchase, stock exchange, business combination, reorganization, recapitalization, liquidation, dissolution or other transaction that is similar in any respect to the Transactions or that otherwise involves any purchase of the business, at least 51% of the assets of the Company and its Subsidiaries, taken as a whole, or the majority of the capital stock of the Company or any of its Subsidiaries, other than the Transactionsinternational operations.
Appears in 1 contract
Sources: Investment and Purchase Agreement (Covanta Energy Corp)