No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (KNBT Bancorp Inc), Agreement and Plan of Merger (Northeast Pennsylvania Financial Corp), Agreement and Plan of Merger (Banknorth Group Inc/Me)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit authorize or direct any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit direct any of its officer, director or its Subsidiaries’ directorsemployee of, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it (collectively, “Representatives”) of, the Company or any of its Subsidiaries Company Subsidiary to, directly or indirectly through another Person, (i) solicit, initiate initiate, knowingly encourage, knowingly induce or encourage (including by way of furnishing information or assistance)knowingly facilitate, or take furnish or disclose non-public information in furtherance of, any other action designed to facilitate Company Takeover Proposal or any inquiry or proposal that is likely would reasonably be expected to result in, any inquiries in or the making of any proposal that constitutes, or is reasonably likely lead to lead to, any Acquisition a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acquisition ProposalAcceptable Confidentiality Agreement in accordance with this Section 7.02(a) and except that the Company may ascertain facts from any person making an Company Takeover for the purpose of the Company Board and the Special Committee in each case informing itself about such Company Takeover Proposal and the person making it), (iii) enter into, participate in or continue any discussions or negotiations regarding with respect to any Acquisition Company Takeover Proposal or (iv) make furnish or authorize disclose to any statement person any non-public information regarding the Company or recommendation any Company Subsidiary with respect to any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in support of any Acquisition or lead to a Company Takeover Proposal. If; provided, and only to the extent however, that, (i) prior to obtaining the approval of this Agreement by Required Company Shareholder Approvals, the Company’s shareholders has not occurredCompany and its Representatives may, (ii) in response to a bona fide written Company Takeover Proposal that the Company Board reasonably (acting on the recommendation of the Special Committee) determines in good faith, faith (after consultation with its outside legal counselcounsel and financial advisor) constitutes, that such action would or could reasonably be required expected to result in order for directors of the or lead to, a Superior Proposal, and which Company to comply with their respective fiduciary duties under applicable law in response to Takeover Proposal did not result from a bona fide, written Acquisition Proposal not solicited in violation material breach of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b7.02(a), the Company may subject to compliance with Section 7.02(c), (1x) furnish information with respect to the Company and the Company Subsidiaries to any Person the person making such an Acquisition Company Takeover Proposal and its Representatives (provided that all such information has been provided or made available to Parent or is provided or made available to Parent prior to or substantially concurrent with the time it is provided or made available to such person) pursuant to a customary confidentiality agreement (as determined by not materially less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions or negotiations with the person making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board (acting on the recommendation of the Special Committee) determines in good faith after consultation with its outside legal counselcounsel that the failure to provide such information or engage in such negotiations or discussions would be inconsistent with its fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.02(a) on terms substantially similar to, and no less favorable to by any Representative of the Company than, or any Company Subsidiary shall be deemed to be a breach of this Section 7.02(a) by the terms contained in any Company unless (i) such agreement between violation is committed without the knowledge of the Company and the Company uses its reasonable best efforts to promptly cure such violation once the Company is made aware or (ii) such Representative is also a Representative of Parent. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and shall direct its and their Representatives to, (2A) participate in immediately cease and cause to be terminated all discussions or negotiations regarding with any person (other than Parent and its Representatives) conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person (other than Parent and its Representatives), if any, that has executed a confidentiality agreement in the last 6 months to return or destroy all information heretofore furnished to such an Acquisition Proposal person or its Representatives by or on behalf of the Company or any Company Subsidiary and (3C) authorize immediately terminate all physical and electronic data room access previously granted to any statement person or recommendation in support of such an Acquisition Proposal its Representatives (other than Parent and effect a Change in Recommendationits Representatives).
Appears in 3 contracts
Samples: Agreement and Plan of Reorganization (Brookfield Renewable Partners L.P.), Agreement and Plan of Reorganization (TerraForm Power, Inc.), Agreement and Plan of Reorganization (TerraForm Power, Inc.)
No Solicitation by the Company. (a) From the date Except as expressly permitted by this Section 7.04, none of this Agreement through the Effective Time, the Company or any of the Company Subsidiaries shall not(whether directly or indirectly through its Representatives or other intermediaries), nor shall it permit any of its Subsidiaries to, nor shall it the Company authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Representatives to, directly or indirectly through another Person, : (i) solicit, initiate or knowingly encourage (including by way of furnishing information or assistance), knowingly facilitate any Company Acquisition Proposal or knowingly take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is would reasonably likely be expected to lead to, to any Company Acquisition Proposal, or endorse any Company Acquisition Proposal; (ii) enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement or other agreement (x) to consummate any Company Acquisition Proposal or otherwise relating to any Company Acquisition Proposal (other than a confidentiality agreement entered into in connection with respect furnishing information in accordance with Section 7.04(b)), (y) to an approve or endorse any Company Acquisition Proposal or (z) to require the Company, in connection with any Company Acquisition Proposal, to abandon, terminate or fail to consummate the Merger; (iii) enter into or participate in any discussions or negotiations regarding in connection with any Company Acquisition Proposal or inquiry with respect to any Company Acquisition Proposal, or furnish to any Person any non-public information with respect to its business, properties or assets in connection with any Company Acquisition Proposal; or (iv) make agree or authorize publicly propose or resolve to take, or take, any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, actions prohibited by clause (i) the approval of this Agreement by the Company’s shareholders has not occurred), (ii) the or (iii) of this sentence. The Company Board reasonably determines in good faithshall immediately cease, after consultation and cause its Representatives to immediately cease, any and all existing activities, discussions or negotiations with its outside legal counsel, that such action would be required in order for directors any parties conducted with respect to any of the matters referenced in the preceding sentence. The Company to comply shall, and shall cause its Affiliates to, promptly request any Person that has executed a confidentiality or non-disclosure agreement in connection with their respective fiduciary duties under applicable law in response to a bona fide, written any actual or potential Company Acquisition Proposal not solicited to return or destroy all confidential information in the possession of such Person or its Representatives. Any violation of this Section 6.07(a) that 7.04 by any Representative of the Company Board believes in good faith is a Superior Proposal and (iii) or the Company provides notice Subsidiaries shall be deemed to Parent be a breach of its decision to take such action in accordance with this Section 7.04 by the requirements Company. For purposes of this Section 6.07(b)7.04 (including for purposes of the defined term “Company Acquisition Proposal” below) only, the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation.term “
Appears in 2 contracts
Samples: Management and Advisory Agreement (Gannett Co., Inc.), Management and Advisory Agreement (New Media Investment Group Inc.)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its Subsidiaries, any of its or its Subsidiaries’ their respective directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it the Company or any of its Subsidiaries Subsidiary in connection with the transactions contemplated by this Agreement (collectively, "Representatives") to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance)initiate, cause, knowingly encourage, or take any other action designed to facilitate or that is likely to result inknowingly facilitate, any inquiries or the making of any proposal that constitutes, constitutes or is reasonably likely to lead to, any Acquisition Proposal, to a Company Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Company Takeover Proposal, or (iv) make furnish to any person any information in connection with or authorize any statement or recommendation in support furtherance of any Acquisition Company Takeover Proposal. IfWithout limiting the foregoing, and only to it is agreed that any violation of the extent that, (i) restrictions set forth in the approval preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Agreement Section 5.02(a) by the Company’s shareholders has not occurred. The Company shall, (ii) and shall cause its Subsidiaries and instruct its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (and in no event after obtaining such Company Stockholder Approval), in response to an unsolicited bona fide written Company Takeover Proposal made after the date hereof that the Board reasonably of Directors of the Company determines in good faithfaith constitutes or is reasonably likely to constitute a Company Superior Proposal, the Company may, if its Board of Directors determines in good faith (after consultation with its outside legal counsel, ) that such action would be required it is necessary to do so in order for directors to comply with its fiduciary duties to the stockholders of the Company to comply with their respective fiduciary duties under applicable law in response Law, and subject to a bona fidecompliance with Section 5.02(c) and after giving Parent two Business Days written notice of such determination, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1A) furnish information with respect to the Company and its Subsidiaries to any Person the person making such an Acquisition Company Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such information (as determined by to the Company after consultation extent that such information has not been previously provided to Parent) is provided to Parent prior to or substantially concurrent with its outside legal counsel) on terms substantially similar tothe time it is provided to such person, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2B) participate in discussions or negotiations with the person making such Company Takeover Proposal (and its Representatives) regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mid Atlantic Medical Services Inc), Agreement and Plan of Merger (Unitedhealth Group Inc)
No Solicitation by the Company. (a) From the date Upon execution of this Agreement through the Effective TimeAgreement, the Company shall immediately terminate any discussions with any person (other than Purchaser and its representatives) concerning an Acquisition Proposal. The Company shall not, nor shall it permit directly or indirectly, through any of its Subsidiaries toofficer, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment bankerdirector, financial advisor, attorney, accountant representative, subsidiary or other representative retained by it or any agent of its Subsidiaries to, directly or indirectly through another Personthe Company, (i) take any action to solicit, initiate initiate, facilitate, continue or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into engage in negotiations or discussions (whether such discussions or negotiations are initiated by the Company, such other person or otherwise) concerning, or provide any agreement with respect non-public information to an any person relating to, any possible Acquisition Proposal, (iii) participate in enter into an agreement with any discussions or negotiations regarding any person providing for a possible Acquisition Proposal or make any public statement, recommendation or solicitation in support of any possible Acquisition Proposal by any person, in each case other than Purchaser and the Merger Subsidiary, or (iv) make agree to, enter into a letter of intent or authorize any statement similar document concerning, or recommendation in support of recommend, any Acquisition Proposal. If; provided, and only to the extent thathowever, (i) the approval of that nothing contained in this Agreement by shall prevent the Company’s shareholders has not occurred, or its Board of Directors, from (iiA) the Company Board reasonably determines furnishing non-public information to, or entering into discussions or negotiations with, any person in good faithconnection with an unsolicited, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation by such person or recommending an unsolicited, bona fide, written Acquisition Proposal by such person to the stockholders of this Section 6.07(athe Company, if and only to the extent that (1) that the Board of Directors of the Company Board believes determines in good faith (after consultation with independent financial and legal advisors) that such Acquisition Proposal is reasonably likely to result in a Superior Proposal and (iii) the Board of Directors of the Company provides notice to Parent of its decision to take such action determines in accordance with the requirements of Section 6.07(b), the Company may good faith (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with independent legal advisors) that such action is necessary for such Board of Directors to comply with its outside legal counselfiduciary duties to stockholders under applicable law and (2) on terms substantially similar prior to furnishing such non-public information to, and or entering into discussions or negotiations with, such person, (x) such Board of Directors receives from such person an executed confidentiality agreement with terms no less favorable to the Company than, the and no more favorable to such person than those terms contained in any such the letter agreement dated February 25, 2002 between Purchaser and the Company, as amended by the Addendum dated March 2003 between Purchaser and the Company and Parent(the "NONDISCLOSURE AGREEMENT"), (2y) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation.such
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lamela Luis E), Agreement and Plan of Merger (Ramsay Youth Services Inc)
No Solicitation by the Company. (a) From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Agreement through the Effective TimeSection 5.5, the Company shall will not, nor shall will it permit any of its Subsidiaries subsidiaries to, nor shall will it authorize or permit any officer, director or employee of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of, the Company or any of its Subsidiaries subsidiaries to, directly or indirectly through another Personindirectly, (i) solicit, initiate or encourage the submission of any Company Acquisition Proposal (including by way as defined in Section 5.5(c)), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to the Company or any of furnishing information or assistance)its subsidiaries, or take any other action designed to facilitate facilitate, any Company Acquisition Proposal or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is may reasonably likely be expected to lead to, any Company Acquisition Proposal, (iiiii) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company, or (iv) enter into any agreement with respect to an a Company Acquisition ProposalProposal (other than a confidentiality agreement as described below); provided, (iiihowever, that nothing contained in this Section 5.5(a) participate in any shall prohibit the Company Board from furnishing information to, or entering into discussions or negotiations regarding with, any person that makes an unsolicited bona fide written offer or proposal that constitutes a Company Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. Ifif, and only to the extent that, (iA) such action is taken prior to receipt of the Company Requisite Vote, (B) the approval Company Board, after consultation with and based upon the advice of this Agreement by outside legal counsel, determines in good faith that such action is consistent with its fiduciary duties to the Company’s shareholders has not occurredCompany stockholders under applicable Law, (iiC) the Company Board reasonably determines in good faith, after consultation with its outside legal counselan independent, nationally recognized financial advisor, that such action Company Acquisition Proposal, if accepted, would be required in order for directors of constitute, or is reasonably likely to lead to, a Company Superior Proposal (as hereinafter defined), and (D) prior to taking such action, the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a(x) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides reasonable notice to Parent of its decision to take the effect that it is taking such action in accordance with the requirements of Section 6.07(b), the Company may and (1y) furnish information with respect to the Company to any Person making receives from such person an Acquisition Proposal pursuant to a customary executed confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar toin reasonably customary form. For purposes of this Agreement, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation."
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Metro Networks Inc), Agreement and Plan of Merger (Westwood One Inc /De/)
No Solicitation by the Company. (a) From Subject to Section 5.3(b) and Section 5.3(d), during the date of this Agreement through the Effective TimeInterim Period, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it the Company Subsidiaries or any of its Subsidiaries or their respective Representatives to, directly or indirectly through another Personindirectly, except as otherwise provided below: (i) solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing any non-public information relating to the Company or assistanceany Company Subsidiary), or knowingly induce or knowingly take any other action designed which would reasonably be expected to facilitate lead to the making, submission or that is likely to result inannouncement of, any inquiries proposal or the making of any proposal inquiry that constitutes, or is reasonably likely to lead to, any an Acquisition Proposal, ; (ii) other than informing Persons of the provisions contained in this Section 5.3, enter into any agreement with respect to an Acquisition Proposalinto, (iii) continue or participate in any discussions or any negotiations regarding any Acquisition Proposal or otherwise take any action to knowingly facilitate or knowingly induce any effort or attempt to make or implement an Acquisition Proposal (including any Acquisition Proposal received prior to the date of this Agreement; (iii) approve, endorse or recommend an Acquisition Proposal or any letter of intent, memorandum of understanding or Contract contemplating an Acquisition Proposal or requiring the Company to abandon or terminate its obligations under this Agreement, or enter into any of the foregoing; or (iv) make agree, resolve or authorize commit to do any statement of the foregoing. The Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all discussions or recommendation in support of negotiations with any Person previously conducted with respect to any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the The Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company shall promptly deny to any Person making such an Acquisition Proposal pursuant third party access to a customary confidentiality agreement any data room (as determined by the Company after consultation with its outside legal counselvirtual or actual) on terms substantially similar to, and no less favorable containing any confidential information previously furnished to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an third party relating to any Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationProposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Synageva Biopharma Corp.), Agreement and Plan of Merger (Trimeris Inc)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any of its officer, director or its Subsidiaries’ directorsemployee of, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it (collectively, “Representatives”) of the Company or any of its Subsidiaries Company Subsidiary to, directly or indirectly through another Person, (i) solicit, initiate initiate, knowingly encourage, induce or encourage (including by way of furnishing information or assistance)facilitate, or take furnish or disclose non-public information in furtherance of, any other action designed to facilitate Company Takeover Proposal or any inquiry or proposal that is likely would reasonably be expected to result in, any inquiries in or the making of any proposal that constitutes, or is reasonably likely lead to lead to, any Acquisition a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acquisition Proposal, Acceptable Confidentiality Agreement in accordance with this Section 5.02(a)) or (iii) enter into, participate in or continue any discussions or negotiations regarding with any Acquisition Proposal or person (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by other than the Company’s shareholders has Representatives) regarding, or furnish or disclose to any person any non-public information with respect to, or otherwise cooperate in any way with any person (whether or not occurreda person making a Company Takeover Proposal) with respect to, (ii) any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a written Company Takeover Proposal that the Company Board reasonably or the Transaction Committee determines in good faith, faith (after consultation with its outside legal counselcounsel and financial advisor) is bona fide and constitutes, that such action would be required or is reasonably expected to result in order for directors or lead to, a Superior Proposal, and which Company Takeover Proposal was unsolicited, was made after the date of the Company to comply with their respective fiduciary duties under applicable law in response to this Agreement and did not otherwise result from a bona fide, written Acquisition Proposal not solicited in violation breach of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b5.02(a), the Company may subject to compliance with Section 5.02(c), (1x) furnish information with respect to the Company and the Company Subsidiaries to any Person the person making such an Acquisition Company Takeover Proposal and its Representatives (provided that all such information has been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person) pursuant to a customary confidentiality agreement (as determined by not less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in discussions regarding the terms of such Company Takeover Proposal and the negotiation of such terms with, and only with, the person (or group of persons) making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board or the Transaction Committee, as applicable, determines in good faith after consultation with its outside legal counselcounsel that providing such information or engaging in such negotiations or discussions is reasonably likely to be required for the directors to comply with their fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such person is purporting to act on terms substantially similar behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.02(a) by the Company. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and its and their Representatives to, (A) immediately cease and no less favorable cause to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in be terminated all discussions or negotiations regarding with any person conducted prior to the date of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person, if any, that has executed a confidentiality agreement in the last 12 months in respect of a Company Takeover Proposal to return or destroy all information heretofore furnished to such an Acquisition Proposal person or its Representatives by or on behalf of the Company or any Company Subsidiary and (3C) authorize reasonably promptly terminate all physical and electronic data room access previously granted to any statement person or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendationits Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Reynolds American Inc), Agreement and Plan of Merger (British American Tobacco p.l.c.)
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement through the Effective TimeSection 5.4, the Company shall not, nor and shall it permit any cause each of its Subsidiaries toand its and their respective officers, nor directors and employees, and shall it authorize use its reasonable best efforts to cause its other Representatives: (i) to immediately cease and cause to be terminated any solicitation, knowing encouragement, discussions or permit negotiations with any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or persons (other representative retained by it or any of its Subsidiaries than Parent) that is ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly through another Personindirectly, (iA) solicit, initiate initiate, knowingly encourage or encourage (including by way of furnishing information or assistance), or take any other action designed to knowingly facilitate or that is likely to result in, any inquiries regarding, or the making of any proposal or offer that constitutes, or is would reasonably likely be expected to lead to, any Acquisition a Company Takeover Proposal, (iiB) enter into any agreement with respect to an Acquisition Proposalengage in, (iii) continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition other person any information in connection with or for the purpose of soliciting, initiating, encouraging or facilitating, a Company Takeover Proposal or (iv) make or authorize any statement or recommendation other than, solely in support of any Acquisition Proposal. Ifresponse to an unsolicited inquiry, to refer the inquiring person to this Section 5.4, and only provided, that the Company and its Representatives may make inquiries of a person making an unsolicited Company Takeover Proposal (and its Representatives) to ascertain facts regarding such Company Takeover Proposal for the extent that, (i) the approval sole purpose of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably of Directors informing itself about such Company Takeover Proposal and the person making it, but in each case limiting its communication exclusively to such referral and such ascertaining of facts), or (C) approve, adopt, recommend or enter into, or propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal. The Company shall not, and shall cause its affiliates not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or fail to enforce, any standstill provision in any agreement to which the Company or any of its affiliates is a party; provided that, with respect to any person that did not submit an indication of interest or bid to acquire the Company during the period between March 1, 2016 and the date of this Agreement, if the Company Board of Directors determines in good faith, after consultation with its the Company’s outside legal counsel, that the failure to take such action would be required in order for directors of inconsistent with the Company to comply with their respective directors’ fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b)Laws, the Company may (1) furnish information with respect waive any such standstill provision applicable to any such persons solely to the extent necessary to permit a third party to make a confidential Company Takeover Proposal to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support Board of such an Acquisition Proposal and effect a Change in RecommendationDirectors.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Analog Devices Inc), Agreement and Plan of Merger (Linear Technology Corp /Ca/)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall notnot directly or indirectly, nor and shall it permit any of its Subsidiaries to, nor shall it not authorize or permit any Representative of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, the Company directly or indirectly through another Personto, (i) solicit, initiate initiate, knowingly encourage or encourage (including by way knowingly induce, or facilitate the making, submission or announcement of furnishing information or assistance), any Company Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is could reasonably likely be expected to lead to, any to a Company Acquisition Proposal, (ii) enter into furnish any agreement information regarding the Company to any Person in connection with respect or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to a Company Acquisition Proposal, (iii) participate engage in any discussions or negotiations regarding with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (ivv) make enter into any letter of intent or authorize similar document or any statement Contract contemplating or recommendation in support of otherwise relating to any Company Acquisition Proposal. IfTransaction; provided, and only however, that prior to the extent that, (i) the approval adoption of this Agreement by the Company’s shareholders has Required Company Stockholder Approval, this Section 4.4(a) shall not occurredprohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Company Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (A) neither the Company nor any Representative of the Company shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 4.4, (iiB) the Board of Directors of the Company Board reasonably determines concludes in good faith, after consultation with having taken into account the advice of its outside legal counsel, that such action would be is required in order for directors the Board of Directors of the Company to comply with their respective its fiduciary duties obligations to the Company’s stockholders under applicable law law, (C) at least three business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and containing customary “standstill” provisions, and (D) at least three business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action inconsistent with any of the provisions set forth in response the preceding sentence by any Representative of the Company whether or not such Representative is purporting to act on behalf of the Company, shall be deemed to constitute a bona fide, written Acquisition Proposal not solicited in violation breach of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined 4.4 by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Favrille Inc), Agreement and Plan of Merger and Reorganization (RHL Group, Inc.)
No Solicitation by the Company. (a) The Company shall, and the Company shall direct and use its reasonable efforts to cause the Bank and the Bank’s affiliates, directors, officers, employees, agents and representatives (including without limitation any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or the Bank) to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal. From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit the Bank or any of its or its Subsidiaries’ the Bank’s directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) except in accordance with Section 9.1(f) hereof, enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Proposal, or (iv) make or authorize any statement statement, recommendation or recommendation solicitation in support of any Acquisition Proposal. If; provided, however, that prior to the twentieth (20th) day after the date of distribution (the “Proxy Statement Distribution Date”) of the Proxy Statement to the stockholders of the Company (which Proxy Statement Distribution Date shall be no later than three (3) business days after the date of filing of the final Proxy Statement with the SEC), if, and only to the extent that, (i) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines in good faith, after consultation with its outside legal counseland financial advisors, that such action the failure to do so would reasonably be required in order for directors of expected to breach the Company to comply with their respective Board’s fiduciary duties under applicable law law, the Company may, in response to a bona fide, fide written Acquisition Proposal not solicited in violation of this Section 6.07(a7.2(a) that the Board of Directors of the Company Board believes in good faith is constitutes a Superior Proposal and Proposal, subject to providing forty-eight (iii48) the Company provides hour prior written notice to Parent Buyer of its the Board’s decision to take such action in accordance and identifying the person making the proposal and all the material terms and conditions of such proposal (the “Company Notice”) and compliance with the requirements Section 7.2(b) hereof, following delivery of Section 6.07(b), the Company may Notice, (1) furnish information with respect to the Company to any Person person making such an Acquisition a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less more favorable to the Company than, such person than the terms contained in any such agreement between the Company and ParentBuyer, and (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationSuperior Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pacifica Bancorp Inc), Agreement and Plan of Merger (Ucbh Holdings Inc)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its Subsidiaries, any of its or its Subsidiaries’ their respective directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it the Company or any of its Subsidiaries Subsidiary in connection with the transactions contemplated by this Agreement (collectively, “Representatives”) to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance)initiate, cause, knowingly encourage, or take any other action designed to facilitate or that is likely to result inknowingly facilitate, any inquiries or the making of any proposal that constitutes, constitutes or is reasonably likely to lead to, any Acquisition Proposal, to a Company Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Company Takeover Proposal, or (iv) make furnish to any person any information in connection with or authorize any statement or recommendation in support furtherance of any Acquisition Company Takeover Proposal. IfWithout limiting the foregoing, and only to it is agreed that any violation of the extent that, (i) restrictions set forth in the approval preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Agreement Section 5.02(a) by the Company’s shareholders has not occurred. The Company shall, (ii) and shall cause its Subsidiaries and instruct its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted previously with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Board reasonably determines Stockholder Approval (and in good faithno event after obtaining such Company Stockholder Approval), after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a an unsolicited bona fide, fide written Acquisition Company Takeover Proposal not solicited in violation of this Section 6.07(a) made after the date hereof that the Company Board believes determines in good faith is (after receiving advice of a Superior Proposal financial advisor of nationally recognized reputation and (iii) the Company provides notice to Parent of its decision outside counsel) constitutes or is reasonably likely to take such action in accordance with the requirements of Section 6.07(b)constitute a Company Superior Proposal, the Company may may, if the Company Board determines in good faith (1after receiving advice of its outside counsel) that it is necessary to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.02(e) and after giving Parent two business days written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to any Person the person making such an Acquisition Company Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as determined by the Company after consultation case may be, prior to or substantially concurrent with its outside legal counsel) on terms substantially similar tothe time it is provided or made available to such person, as the case may be, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2B) participate in discussions or negotiations with the person making such Company Takeover Proposal (and its Representatives) regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NWH Inc), Agreement and Plan of Merger (Unitedhealth Group Inc)
No Solicitation by the Company. (a) From and after the date of this Agreement through the Effective Timehereof, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its Subsidiaries, any of its or its Subsidiaries’ their respective directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it the Company or any of its Subsidiaries Subsidiary in connection with the transactions contemplated by this Agreement (collectively, “Representatives”) to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance)initiate, cause, knowingly encourage, or take any other action designed to facilitate or that is likely to result inknowingly facilitate, any inquiries or the making of any proposal that constitutes, constitutes or is reasonably likely to lead to, any Acquisition Proposal, to a Company Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Company Takeover Proposal, or (iv) make furnish to any person any information in connection with or authorize any statement or recommendation in support furtherance of any Acquisition Company Takeover Proposal. IfWithout limiting the foregoing, and only to it is agreed that any violation of the extent that, (i) restrictions set forth in the approval preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Agreement Section 5.02(a) by the Company’s shareholders has not occurred. The Company shall, (ii) and shall cause its Subsidiaries and instruct its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Board reasonably determines Stockholder Approval (and in good faithno event after obtaining such Company Stockholder Approval), after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a an unsolicited bona fide, fide written Acquisition Company Takeover Proposal not solicited in violation of this Section 6.07(a) made after the date hereof that the Company Board believes determines in good faith is (after consultation with a Superior Proposal financial advisor of nationally recognized reputation and (iii) outside counsel and in light of all circumstances that the Company provides notice Board deems reasonably relevant, including, without limitation, the terms and conditions of such proposal and this Agreement) constitutes or is reasonably likely to Parent of its decision lead to take such action in accordance with the requirements of Section 6.07(b)a Company Superior Proposal, the Company may may, if the Company Board determines in good faith (1after receiving advice of its outside counsel) that its failure to do so could reasonably be expected to be considered a breach of its fiduciary duties to the stockholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) after giving Parent at least 24 hours’ prior written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to any Person the person making such an Acquisition Company Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement (as determined by except for such changes specifically necessary in order for the Company after consultation to be able to comply with its outside legal counselobligations under this Agreement), provided that all such information (to the extent that such information has not been previously provided or made available to Parent) on terms is provided or made available to Parent, as the case may be, prior to or substantially similar toconcurrent with the time it is provided or made available to such person, as the case may be, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2B) participate in discussions or negotiations with the person making such Company Takeover Proposal (and its Representatives) regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany Takeover Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mgi Pharma Inc), Agreement and Plan of Merger (Guilford Pharmaceuticals Inc)
No Solicitation by the Company. (a) From the date of this Agreement through The Company agrees that it, prior to the Effective Time, the Company shall not, directly or indirectly, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its officer, director, employee or its Subsidiaries’ directorsagent of, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of, the Company or any of its Subsidiaries (collectively, the "Company Representatives") to, directly or indirectly through another Person, (i) solicit, initiate initiate, encourage, induce or encourage (including by way facilitate the making, submission or announcement of furnishing any Acquisition Proposal, or participate in any discussions or negotiations regarding, or furnish to any Person any information or assistance)with respect to, or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is would reasonably likely be expected to lead to, any Acquisition Proposal, (ii) or approve, endorse or recommend any Acquisition Proposal, or enter into any letter of intent, agreement with respect in principle, acquisition agreement or other document or contract contemplating or otherwise relating to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. Ifprovided, and only however, that, prior to the extent that, (i) the adoption and approval of this Agreement by the Company’s shareholders has requisite Company Stockholder Approval, the foregoing shall not occurred, (ii) prohibit the Company from furnishing information to or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide proposal to enter into a business combination with the Company pursuant to an Acquisition Proposal which the Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of Directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a(or any committee thereof considering such proposal) that the Company Board believes in good faith determines is a Superior Proposal and (iii) the Company provides notice reasonably likely to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less be more favorable to the Company thanCompany's stockholders than the transactions contemplated by this Agreement (a "Superior Proposal"), the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation.so long as:
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SFX Entertainment Inc), Agreement and Plan of Merger (Clear Channel Communications Inc)
No Solicitation by the Company. (a) From and after the date of this Agreement through the Effective TimeAgreement, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its Subsidiaries, nor shall it authorize or its Subsidiaries’ directorspermit any officer, officers director or employees employee of or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it (collectively, the “Representatives”) of, the Company or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate initiate, facilitate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making submission of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Company Takeover Proposal, (ii) enter into any agreement with respect to an Acquisition Proposalany Company Takeover Proposal (other than a confidentiality agreement in accordance with this Section 5.2 ) or resolve, agree or propose to take any such actions, or (iii) participate provide any non-public information regarding the Company to any third party or engage in any negotiations or discussions in connection with, or negotiations regarding otherwise cooperate in any Acquisition Proposal or (iv) make or authorize way with, any statement or recommendation in support of any Acquisition Company Takeover Proposal. If; provided, and only however, that prior to the extent thatreceipt of the Stockholder Approval, (i) the approval Company and the Representatives of the Company may, in response to a Company Takeover Proposal that was not solicited by the Company or its Subsidiaries or any of its or their Representatives and did not otherwise result from a breach of this Agreement by the Company’s shareholders has not occurredSection 5.2, (ii) if the Company Board reasonably determines in good faith, after consultation with outside counsel and its outside legal counselfinancial advisor, that such action the following actions would reasonably be required expected to result in order for directors of the Company Takeover Proposal becoming a Company Superior Proposal, provide any non-public information regarding the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Company Takeover Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no not less favorable to the Company restrictive of such Person than, the terms contained Confidentiality Agreement (provided that such confidentiality agreement and any related agreement shall not contain any provision calling for a right to negotiate exclusively with the Person making such Company Takeover Proposal or having the effect of prohibiting the Company from satisfying any of its obligations under this Agreement, provided, further, that all information provided to a third party under this Section 5.2 is provided or made available on a prior or substantially concurrent basis to Parent and Merger Sub if such information has not previously been provided to Parent or Merger Sub) or engage in any negotiations or discussions with such agreement between the Person regarding any Company Takeover Proposal. The Company shall, and Parentshall cause each of its Subsidiaries to immediately cease and cause to be terminated any existing activities, (2) participate in discussions or negotiations regarding by the Company, any Subsidiary of the Company or any Representative of the Company or its Subsidiaries with any parties (other than Parent and Merger Sub) conducted heretofore with respect to any of the foregoing and request from each Person that has executed a confidentiality agreement with the Company the prompt return or destruction of all confidential information previously furnished to such an Acquisition Person or its Representatives and terminate access by each such Person and its Representatives to any online or other data rooms containing any information in respect of the Company or any of its Subsidiaries. It is understood that any violation of the restrictions set forth in this Section 5.2(a) by any Representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.2(a) by the Company. Neither the Company nor the Company Board shall approve, or take any action to render Section 203 of the DGCL or any similar takeover statute inapplicable to, any Company Takeover Proposal and (3) authorize any statement or recommendation other than in support connection with entering into a definitive agreement with respect to a Company Superior Proposal to the extent permitted under Section 5.2(b)). Table of such an Acquisition Proposal and effect a Change in Recommendation.Contents
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bae Systems PLC), Agreement and Plan of Merger (BAE Systems, Inc.)
No Solicitation by the Company. (a) From During the date of this Agreement through the Effective TimePre-Closing Period, the Company shall notnot directly or indirectly, nor and shall it permit any of its Subsidiaries to, nor shall it not authorize or permit any of its or its Subsidiaries’ directors, officers or employees the other Acquired Corporations or any investment banker, financial advisor, attorney, accountant or other representative retained by it or Representative of any of its Subsidiaries to, the Acquired Corporations directly or indirectly through another Personto, (i) solicit, initiate initiate, encourage, induce or encourage (including by way facilitate the making, submission or announcement of furnishing information or assistance), any Company Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is could reasonably likely be expected to lead to, any to a Company Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Acquired Corporations to any Person in connection with respect or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could lead to a Company Acquisition Proposal, (iii) participate engage in any discussions or negotiations regarding with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (ivv) make enter into any letter of intent or authorize similar document or any statement Contract contemplating or recommendation otherwise relating to any Company Acquisition Transaction; PROVIDED, HOWEVER, that this Section 4.3(a) shall not prohibit (A) the Company, or the Board of Directors of the Company, from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in support response to a Company Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any Acquisition Proposal. If, and only to of the extent thatAcquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (i2) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines concludes in good faith, after consultation with its outside legal counsel, that such action would be is required in order for directors the Board of Directors of the Company to comply with their respective its fiduciary duties obligations to the Company's stockholders under applicable law in response Legal Requirements, (3) at least three (3) business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person or any of such Person's Representatives by or on behalf of the Company, and (4) at least two (2) business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent); or (B) the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a bona fideCompany Acquisition Proposal. Without limiting the generality of the foregoing, written Acquisition Proposal the Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not solicited in violation such Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a breach of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined 4.3 by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger And (Titan Corp), Agreement and Plan of Merger And (Datron Systems Inc/De)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of, the Company or any of its Subsidiaries Company Subsidiary to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to knowingly facilitate or that is likely to result in, any inquiries or encourage the making submission of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition ProposalCompany Takeover Proposal (as defined below), (ii) enter into any agreement with respect to an Acquisition Proposal, any Company Takeover Proposal or (iii) participate provide any non-public information regarding the Company to any third party or engage in any negotiations or discussions in connection with any Company Takeover Proposal; provided, however, that prior to receipt of the Company Stockholder Approval, the Company may furnish information to, and engage in discussions or negotiations regarding with, any Acquisition party who delivers a written proposal for a Company Takeover Proposal which was not solicited, initiated, knowingly facilitated or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to encouraged after the extent that, (i) the approval date of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that Agreement if and so long as the Board of Directors of the Company Board believes determines in good faith is by resolution duly adopted that such a Superior Proposal and proposal (iii) including any conditions to such proposal that the Board of Directors of the Company provides notice determines are reasonably likely to Parent of its decision to take such action in accordance be satisfied) is, after consulting with the requirements of Section 6.07(b)Company's independent financial advisors, the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less more favorable to the Company thanstockholders from a financial point of view than the transactions contemplated by this Agreement (including any adjustment to the terms and conditions proposed by Parent in response to such Company Takeover Proposal) and is reasonably capable of being consummated (a "Superior Proposal"); provided, further, that prior to furnishing information to, or engaging in discussions with, any party pursuant to the foregoing proviso, the Company shall have received an executed agreement from such party having terms which are at least as favorable to the Company as the terms contained in the Confidentiality Agreement. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any officer, director or employee of the Company or any Company Subsidiary or any investment banker, attorney, accountant or other advisor or representative of the Company or any Company Subsidiary, whether or not such agreement between person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 4.2(a) by the Company. For purposes of this Agreement, "Company Takeover Proposal" means any proposal for a merger, consolidation or other business combination involving the Company or any Company Subsidiary or any proposal or offer to acquire in any manner, directly or indirectly, more than 20% of any class of voting securities of the Company or any Company Subsidiary, including any proposal or offer relating to the acquisition by the Company in any manner, directly or indirectly, of any securities or assets of another person in consideration for the issuance of more than 20% of any class of voting securities of the Company or any Company Subsidiary, or assets representing a substantial portion of the assets of the Company and Parentthe Company Subsidiaries, (2) participate in taken as a whole, other than the transactions contemplated by this Agreement. The Company shall, and shall cause each Company Subsidiary to, immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding such an Acquisition Proposal and (3) authorize by the Company, any statement Company Subsidiary or recommendation in support any officer, director or employee of such an Acquisition Proposal and effect a Change in Recommendationor investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary, with any parties conducted heretofore with respect to any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Battle Mountain Gold Co)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries subsidiaries to, nor shall it authorize or permit any of its or any of its Subsidiaries’ subsidiaries' directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries subsidiaries to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistanceinformation), or take any other action designed to facilitate intended to, or that is likely to result inwhich could reasonably be expected to, facilitate, any inquiries or the making of any proposal that constitutes, or is could reasonably likely be expected to lead to, any Acquisition Proposal, Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposalinto, (iii) continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposal person any information with respect to, or (iv) make or authorize otherwise cooperate in any statement or recommendation in support of way with, any Acquisition Takeover Proposal. IfNotwithstanding the foregoing, in the event that, notwith standing compliance with the preceding sentence, the Company receives a bona fide written Takeover Proposal that the Board of Directors of the Company determines in good faith (after consultation with outside counsel and only a financial advisor of nationally recognized reputation) constitutes or is reasonably likely to lead to a Superior Proposal, the Company may, to the extent that, (i) that the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines in good faith, faith (after consultation with its outside legal counsel, ) that such action would be it is required to do so in order for directors of the Company to comply with their respective its fiduciary duties under applicable law in response to a bona fideduties, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Takeover Proposal and (3) authorize any statement or recommendation in support of order to inform itself in a manner required to comply with its fiduciary duties with respect to such an Acquisition Proposal and effect a Change in Recommendation.Takeover
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it authorize or permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any of its officer, director or its Subsidiaries’ directorsemployee of, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it (collectively, “Representatives”) of the Company or any of its Subsidiaries Company Subsidiary to, directly or indirectly through another Person, (i) solicit, initiate initiate, knowingly encourage, induce or encourage (including by way of furnishing information or assistance)facilitate, or take furnish or disclose non-public information in furtherance of, any other action designed to facilitate Company Takeover Proposal or any inquiry or proposal that is likely would reasonably be expected to result in, any inquiries in or the making of any proposal that constitutes, or is reasonably likely lead to lead to, any Acquisition a Company Takeover Proposal, (ii) enter into any agreement with respect to any Company Takeover Proposal (except an Acquisition Proposal, Acceptable Confidentiality Agreement in accordance with this Section 5.02(a)) or (iii) enter into, participate in or continue any discussions or negotiations regarding with any Acquisition person (other than the Company’s Representatives) regarding, or furnish or disclose to any person any non-public information with 42 respect to, or otherwise cooperate in any way with any person (whether or not a person making a Company Takeover Proposal) with respect to, any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal; provided, however, that, prior to obtaining the Required Company Shareholder Approvals, the Company and its Representatives may, in response to a written Company Takeover Proposal that the Company Board or the Transaction Committee determines in good faith (ivafter consultation with its outside legal counsel and financial advisor) make is bona fide and constitutes, or authorize any statement is reasonably expected to result in or recommendation lead to, a Superior Proposal, and which Company Takeover Proposal was unsolicited, was made after the date of this Agreement and did not otherwise result from a breach of this Section 5.02(a), subject to compliance with Section 5.02(c), (x) furnish information with respect to the Company and the Company Subsidiaries to the person making such Company Takeover Proposal and its Representatives (provided that all such information has been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such person) pursuant to a customary confidentiality agreement not less restrictive of the person making the Company Takeover Proposal and its Representatives than the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”) and (y) participate in support discussions regarding the terms of any Acquisition Proposal. Ifsuch Company Takeover Proposal and the negotiation of such terms with, and only with, the person (or group of persons) making such Company Takeover Proposal and its Representatives, in each case if and so long as the Company Board or the Transaction Committee, as applicable, determines in good faith after consultation with its outside legal counsel that providing such information or engaging in such negotiations or discussions is reasonably likely to be required for the directors to comply with their fiduciary duties under applicable Law. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.02(a) by any Representative or affiliate of the Company or any Company Subsidiary, whether or not such person is purporting to act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.02(a) by the Company. Upon execution of this Agreement, the Company shall, and shall cause each Company Subsidiary and its and their Representatives to, (A) immediately cease and cause to be terminated all discussions or negotiations with any person conducted prior to the extent thatdate of this Agreement with respect to a Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to result in or lead to a Company Takeover Proposal, (B) promptly request each person, if any, that has executed a confidentiality agreement in the last 12 months in respect of a Company Takeover Proposal to return or destroy all information heretofore furnished to such person or its Representatives by or on behalf of the Company or any Company Subsidiary and (C) reasonably promptly terminate all physical and electronic data room access previously granted to any person or its Representatives. (b) Neither the Company Board nor the Transaction Committee or any other committee thereof will (i) (A) withhold or withdraw (or modify or qualify in any manner adverse to Parent), or propose publicly to withhold or withdraw (or modify or qualify in any manner adverse to Parent), the approval of Company Recommendation or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Company Takeover Proposal (any action in this Agreement by the Company’s shareholders has not occurred, clause (i) being referred to as a “Company Adverse Recommendation Change”) or (ii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, or allow the Company or any of the Company Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint 43 venture agreement, alliance agreement, partnership agreement or other similar Contract or arrangement (other than an Acceptable Confidentiality Agreement pursuant to Section 5.02(a)) constituting or relating to, or that is intended to or would reasonably be expected to result in or lead to, any Company Takeover Proposal, or requiring, or that would reasonably be expected to cause, the Company to abandon, terminate, delay or fail to consummate, or that would otherwise impede, interfere with or be inconsistent with, the Transactions, or requiring, or that would reasonably be expected to cause, the Company to fail to comply with this Agreement. Notwithstanding the foregoing or anything else to the contrary herein, at any time prior to obtaining the Required Company Shareholder Approvals, the Company Board reasonably or the Transaction Committee may make a Company Adverse Recommendation Change only if the Company Board or Transaction Committee, as applicable, determines in good faith, after consultation with its outside legal counselcounsel and financial advisor and after giving effect to all of the adjustments to the terms of this Agreement that have been offered in writing by Parent in accordance with this Section 5.02(b), that such action the failure to do so would be required in order for directors of the Company to comply inconsistent with their respective its fiduciary duties under applicable law in response Law; provided, however, that neither the Company Board nor the Transaction Committee will be entitled to exercise its rights to make a bona fide, Company Adverse Recommendation Change unless (x) the Company delivers to Parent a written Acquisition Proposal not solicited in violation of this Section 6.07(anotice (a “Company Notice”) advising Parent that the Company Board believes or the Transaction Committee, as applicable, intends to take such action and specifying the reasons therefor, including, in good faith the case of a Superior Proposal, (A) the identity of the party making such Superior Proposal, (B) the material terms and conditions of the Superior Proposal that is the basis of the proposed action by the Company Board and (C) a copy of the most current version of any proposed definitive agreement(s) with respect to any such Superior Proposal and (iiiy) at or after 5:00 p.m., New York City time, on the fourth Business Day following the day on which the Company provides notice to Parent delivered the Company Notice (it being understood that for purposes of its decision to take calculating such action in accordance with four Business Days, the requirements first Business Day will be the first Business Day after the date of Section 6.07(bsuch delivery), the Company may Board or the Transaction Committee, as applicable, reaffirms in good faith (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counselcounsel and financial advisor) that (1) in the case of a Superior Proposal, such Company Takeover Proposal continues to constitute a Superior Proposal and (2) the failure to make a Company Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law (it being understood and agreed that any change in the financial terms or any other material amendment to the terms and conditions of such Superior Proposal will require a new Company Notice and a new two Business Day period (it being understood that any such two Business Day period will be calculated in the same manner as the initial four Business Day period)). In determining whether to make a Company Adverse Recommendation Change, the Company Board and the Transaction Committee will take into account any changes to the terms of this Agreement proposed in writing by Parent by 5:00 p.m., New York City time, on terms substantially similar the last Business Day of the applicable four Business Day period or two Business Day period, as applicable, in response to a Company Notice, and if requested by Parent, the Company will, and will cause its Representatives to, engage in good faith negotiations with Parent and its Representatives to make such adjustments in the terms and conditions of this Agreement so that any Company Takeover Proposal would cease to constitute a Superior Proposal or that such failure to make a Company Adverse Recommendation Change would cease to be inconsistent with the Company Board’s or Transaction Committee’s, as applicable, fiduciary duties under applicable Law. Notwithstanding any Company Adverse Recommendation Change, if the Required Company Shareholder Approvals are obtained, the requirement that the Other Directors 44 (as defined in the Governance Agreement) have approved the Transactions for purposes of Section 2.07 of the Governance Agreement shall be deemed to have been satisfied. (c) In addition to the obligations of the Company set forth in paragraphs (a) and (b) of this Section 5.02, the Company shall promptly, and in any event within 24 hours, advise Parent in writing of any Company Takeover Proposal or any request for non-public information or inquiry that would reasonably be expected to result in, lead to or that contemplates a Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal, request or inquiry and the material terms of any such Company Takeover Proposal, request or inquiry. The Company shall (i) keep Parent informed in all material respects on a reasonably current basis of the status, including any change to the material terms of, any such Company Takeover Proposal, and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of any draft definitive agreements or term sheets sent or provided to the Company from any third party in connection with any Company Takeover Proposal or sent or provided by the Company to any third party in connection with any Company Takeover Proposal. (d) Nothing contained in this Section 5.02 shall prohibit the Company from complying with Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act or from making any other disclosure to the holders of Company Capital Stock if, in the good-faith judgment of the Company Board or the Transaction Committee, after consultation with its respective outside legal counsel, failure so to disclose would be inconsistent with its obligations under applicable Law; provided, however, that (x) in no less event shall the Company, the Company Board or the Transaction Committee or any other committee thereof take, or agree to take, any action prohibited by Section 5.02(b) and (y) any public disclosure made by or on behalf of the Company that refers to a Company Takeover Proposal will be deemed to be a Company Adverse Recommendation Change (including for purposes of Section 8.01(d)) unless the Company Board expressly reaffirms the Company Recommendation in such disclosure. (e) For purposes of this Agreement: “Company Takeover Proposal” means any inquiry, proposal or offer (whether or not in writing) with respect to any (i) tender offer or exchange offer, merger, amalgamation, arrangement, consolidation, share exchange, other business combination or similar transaction involving the Company or any Company Subsidiary, pursuant to which any person or group of persons (or affiliates thereof) would acquire 25% or more of the consolidated revenues, net income, earnings before interest expense, taxes, depreciation and amortization (“EBITDA”) or assets of the Company and the Company Subsidiaries, taken as a whole, (ii) sale, lease, contribution or other disposition, directly or indirectly (including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture, sale of capital stock of or other equity interests in a Company Subsidiary or otherwise) of any business or assets of the Company or the Company Subsidiaries representing 25% or more of the consolidated revenues, net income, EBITDA or assets of the Company and the Company Subsidiaries, taken as a whole, (iii) issuance, sale or other disposition, directly or indirectly, to any person or group of persons (or affiliates or stockholders thereof) of securities (or options, rights or warrants to purchase, or securities convertible into or exchangeable for, such securities) 45 representing 25% or more of the voting power of the Company, (iv) transaction in which any person or group of persons (or affiliates or stockholders thereof) will acquire, directly or indirectly, beneficial ownership, or the right to acquire beneficial ownership, or formation of any group which has beneficial ownership or has the right to acquire beneficial ownership, of 25% or more of the voting power of the Company or (v) combination of the foregoing (in each case, other than the Transactions). “Superior Proposal” means any bona fide binding written offer (not solicited by or on behalf of the Company or any Company Subsidiary or any of their respective Representatives or otherwise resulting from a breach of Section 5.02(a)) made by a third party after the date of this Agreement that, if consummated, would result in such third party (or its shareholders) owning, directly or indirectly, a majority of the voting power of the Company Capital Stock then outstanding (or of the stock of the surviving entity in a merger or the direct or indirect parent of the surviving entity in a merger) or a majority of the assets of the Company and the Company Subsidiaries, taken as a whole, which the Company Board or the Transaction Committee, determines in good faith (after consultation with its outside legal counsel and financial advisor) to be (i) more favorable to the holders of Company than, Common Stock from a financial point of view than the Merger and the other Transactions (taking into account all of the terms contained and conditions of, and the likelihood of completion of, such proposal and this Agreement (including any changes to the financial terms of this Agreement proposed by Parent in any response to such agreement between the Company and Parent, (2offer or otherwise)) participate in discussions or negotiations regarding such an Acquisition Proposal and (3ii) authorize any statement or recommendation in support reasonably capable of being completed, taking into account all financial, legal, regulatory and other aspects of such an Acquisition Proposal and effect a Change in Recommendationproposal. SECTION 5.03.
Appears in 1 contract
Samples: Ix Agreement and Plan of Merger
No Solicitation by the Company. (a) The Company and its Subsidiaries and each of their respective affiliates, directors, officers, employees, agents and representatives (including without limitation any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries) shall immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to any Acquisition Proposal. From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If; provided, however, that if, and only to the extent that, (iA) the approval of this the Merger Agreement by the Company’s shareholders stockholders has not occurred, occurred and (iiB) the Company Board reasonably determines in good faith, after consultation with its outside legal counseland financial advisors, that such action actions would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law law, the Company may, in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a6.06(a) that the Company Board believes in good faith is or would be reasonably likely to result in a Superior Proposal and Proposal, subject to providing twenty four (iii24) the Company provides hour prior written notice to Parent of its decision to take such action in accordance to Parent and identifying the Person making the proposal and all the material terms and conditions of such proposal (the “Company Notice”) and compliance with the requirements of Section 6.07(b6.06(b), following delivery of the Company may Notice (1) furnish information with respect to the Company to any Person making such an Acquisition a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less more favorable to the Company than, such Person than the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Superior Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Superior Proposal and effect withhold, withdraw, amend or modify the recommendation referred in Section 6.02. Any violation of the foregoing restrictions by any of the Company’s representatives, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or otherwise, shall be deemed to be a Change in Recommendationbreach of this Agreement by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Banknorth Group Inc/Me)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries subsidiaries to, nor shall it or authorize or permit any director, officer or employee of the Company or any of its or its Subsidiaries’ directors, officers or employees subsidiaries or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of the Company or any of its Subsidiaries subsidiaries (collectively, the “Company Representatives”) to, directly or indirectly through another Personindirectly, (i) solicit, initiate initiate, induce or knowingly encourage any Company Takeover Proposal (including by way of furnishing information as defined below) or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposalinto, (iii) continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposal Person any information or (iv) data or afford access to the properties, books or records of the Company or any of its subsidiaries with respect to any Company Takeover Proposal, or otherwise facilitate any effort or attempt to make or authorize implement any statement Company Takeover Proposal, in each case other than a Company Takeover Proposal made by Parent; provided, however, that, at any time prior to acceptance of the Company Shares pursuant to the Offer, the Board of Directors may, in response to a Company Takeover Proposal that the Board of Directors determines in good faith, after consultation with its financial advisor, constitutes or recommendation in support could reasonably be expected to lead to a Company Takeover Proposal that is more favorable to the stockholders of the Company (taking into account the Person making the Company Takeover Proposal, the consideration offered, the likelihood and timing of consummation (including the legal, financial and regulatory aspects of the Company Takeover Proposal) as well as any Acquisition other factors deemed relevant by the Board of Directors) than the proposal evidenced by this Agreement (a “Company Competitive Proposal. If”), (x) furnish information with respect to the Company and its subsidiaries to the Person making this Company Competitive Proposal (and its representatives) pursuant to a customary confidentiality agreement (which confidentiality agreement contains terms that are equivalent to, and only in no respect less favorable to the extent thatCompany than, the terms of the Confidentiality Agreement, dated August 30, 2002, between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”)), and (y) participate in discussions or negotiations with the Person making this Company Competitive Proposal (and its representatives) regarding this Company Competitive Proposal, provided that (i) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably Directors determines in good faith, after consultation with its outside legal counsel, that the failure to provide such action information or engage in such negotiation, would be required in order for directors inconsistent with the Board of the Company to comply with their respective Directors’ fiduciary duties under applicable law in response Law and (ii) a copy of all the information provided to a bona fide, written Acquisition Proposal such Person is delivered simultaneously to Parent if it has not solicited in violation previously been furnished or made available to Parent. Promptly after the execution of this Section 6.07(a) that Agreement, the Company Board believes in good faith is a Superior will, and will cause each of its subsidiaries and each of the Company Representatives to, (i) terminate all discussions or negotiations with all third parties regarding any Company Takeover Proposal and (iiiii) request the Company provides notice to Parent prompt return or destruction of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish all confidential information with respect relating to the Company or any of its subsidiaries previously furnished to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendationthird parties.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through the Effective TimeClosing Date, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any its investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistanceassistance that it is not legally obligated to furnish), or take any other action designed to facilitate that is intended or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. IfNotwithstanding the foregoing, if, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders Shareholders as set forth in Section 5.01(e) has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a6.06(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent the Purchasers of its decision to take such action in accordance with the requirements of Section 6.07(b6.06(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company such Person than, the terms contained in any such agreement between the Company and ParentConfidentiality Agreement, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change withhold, withdraw, amend or modify the recommendation referred in RecommendationSection 6.02.
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Financial Mortgage Corp)
No Solicitation by the Company. (a) From the date of this Agreement through until the earlier of the Effective TimeTime or the termination of this Agreement pursuant to Section 9.01, the Company shall not, agrees that neither the Company nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, the directors and officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it of the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly through another Personindirectly, (i) initiate, solicit, initiate encourage or encourage otherwise facilitate (including by way of furnishing information or assistance) any Acquisition Proposal or any inquiries that may reasonably be expected to lead to an Acquisition Proposal. The Company further agrees that neither the Company nor any of its Subsidiaries nor any of the directors and officers of the Company or any of its Subsidiaries shall, and that it shall direct and use its best efforts to cause the other employees, agents and representatives (including investment bankers, attorneys and accountants) employed or retained by the Company or any of its Subsidiaries not to, directly or indirectly, engage in any discussion with or provide any confidential information or data to any Person that may reasonably be expected to AGREEMENT AND PLAN OF MERGER -34- lead to an Acquisition Proposal or engage in any negotiations concerning, or otherwise facilitate any effort or attempt to make or implement, an Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of the Company shall be permitted (A), or take any other action designed to facilitate or that is likely the extent applicable, to result incomply, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect regard to an Acquisition Proposal, with Rule 14e-2(a) promulgated under the Exchange Act, (iiiB) participate in response to an unsolicited bona fide written Acquisition Proposal from any Person, to recommend such Acquisition Proposal to the Company's stockholders or withdraw or modify in any adverse manner its approval or recommendation of this Agreement, or both, or (C) to engage in any discussions or negotiations regarding with, or provide any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal or (iv) make or authorize by any statement or recommendation in support of any Acquisition Proposal. Ifsuch Person, if and only to the extent that, in any such case described in clause (B) or (C), (i) the approval of this Agreement by the Company’s shareholders has Required Company Vote shall not occurredhave been theretofore obtained, (ii) the Board of Directors of the Company Board reasonably determines shall have concluded in good faithfaith that such Acquisition Proposal (x) in the case of that described in clause (B) above would, after consultation with its if consummated, constitute a Superior Proposal or (y), in the case described in clause (C) above could reasonably be expected to constitute a Superior Proposal, (iii) the Board of Directors of the Company shall have determined in good faith on the basis of advice of outside legal counsel, counsel that such action would be required is necessary for such Board of Directors to act in order for directors of the Company to comply a manner consistent with their respective its fiduciary duties under applicable law Law and (iv) prior to providing any information or data to any Person in response to a bona fide, written connection with an Acquisition Proposal not solicited in violation by any such Person, the Board of this Section 6.07(a) that Directors shall have received from such Person an executed confidentiality agreement containing customary terms and provisions. The Company shall promptly notify the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of such inquiries, proposals or offers received by, or any such discussions or negotiations sought to be initiated or continued with, any of its decision to take representatives indicating, in connection with such action in accordance with the requirements of Section 6.07(b)notice, the name of such Person and the material terms and conditions of any proposals or offers. The Company may (1) furnish information agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 6.03 shall permit the Parent or the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement terminate this Agreement (except as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained specifically provided in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationArticle IX).
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, agrees that neither it nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of the officers and directors of it or its or Subsidiaries shall, and that it shall use all reasonable efforts to cause its and its Subsidiaries’ directorsemployees, officers or employees or agents and representatives (including any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries Subsidiaries) not to (and shall not authorize any of them to), directly or indirectly through another Person, indirectly: (i) solicit, initiate initiate, encourage, facilitate or encourage induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal with respect to itself, (including by way of furnishing ii) participate in any discussions or negotiations regarding, or furnish to any person or entity any nonpublic information or assistance)with respect to, or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, constitutes or is may reasonably likely be expected to lead to, any Acquisition ProposalProposal with respect to itself, (iiiii) engage in discussions with any person or entity with respect to any Acquisition Proposal with respect to itself, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal with respect to itself (except to the extent specifically permitted pursuant to Section 6.11 and Section 8.1(g)), or (v) enter into any letter of intent or similar document or any contract, agreement with respect or commitment contemplating or otherwise relating to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information transaction contemplated thereby with respect to itself (except as permitted pursuant to Section 6.11 and Section 8.1(g)). The Company and its Subsidiaries shall, and the Company shall use all reasonable efforts to cause its and its Subsidiaries’ officers, directors, employees, agents and representatives (including any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined investment banker, attorney or accountant retained by the Company after consultation with it or any of its outside legal counselSubsidiaries) on terms substantially similar to, immediately cease any and no less favorable to the Company thanall existing activities, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an with any third parties conducted heretofore with respect to any Acquisition Proposal with respect to itself. The Company shall ensure that its officers, directors and (3) authorize any statement or recommendation in support key employees and its investment bankers, attorneys and other representatives are aware of such an Acquisition Proposal and effect a Change in Recommendationthe provisions of this Section.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through until the Effective TimeTime or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall notnot (whether directly or indirectly through advisors, nor agents or other intermediaries), and the Company shall it permit any of cause its Subsidiaries toand its subsidiaries' respective officers, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment bankeradvisors, financial advisor, attorney, accountant or representatives and other representative retained by it or any of its Subsidiaries agents not to, directly or indirectly through another Personindirectly, (i) solicit, initiate or encourage (including by way of furnishing information or assistance)knowingly encourage, or take any other action designed to facilitate or that is likely to result infacilitate, any inquiries or the making of any proposal that constitutes, or is may reasonably likely be expected to lead to, any Acquisition Proposal, Proposal or (ii) participate or engage in substantive discussions or negotiations with, or disclose or provide any non-public information relating to the Company or its subsidiaries or afford access to the properties, books or records of the Company or its subsidiaries to, any person (including any "PERSON" as defined in Section 13(d)(3) of the Exchange Act) that has made an Acquisition Proposal or with or to any Person in contemplation of an Acquisition Proposal or (iii) enter into any agreement with respect or agreement in principle providing for or relating to an Acquisition Proposal; provided, however, that if and only if (A) a person has submitted an unsolicited written Acquisition Proposal (under circumstances in which the Company has complied with its obligations under this Section 5.5(a)) to the Company's Board of Directors, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (iB) the approval Company's Board of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines Directors believes in good faith, after consultation with its outside legal counselbased on such matters as it deems relevant, including the advice of the Company's financial advisor, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iiiC) the Company provides notice to Parent Company's Board of its decision to take Directors determines in good faith, based on such action in accordance matters as it deems relevant, including consultation with the requirements Company's outside legal counsel, that engaging in such negotiations or discussions or providing such information is required to satisfy the fiduciary duties of Section 6.07(b)the Board of Directors of the Company under Delaware Law, then the Company may (1) furnish information to such person with respect to the Company to any Person making such an Acquisition Proposal pursuant to and its subsidiaries (so long as the Company has entered into a customary confidentiality agreement (as determined with such party) and participate in negotiations and discussions with such person regarding such Acquisition Proposal; provided further that, after the third business day following Parent's receipt of written notice advising Parent that the Company's Board of Directors is prepared to accept such Superior Proposal, which notice specifies the material terms and conditions of such Superior Proposal and identifies the person making such Superior Proposal, the Board of Directors of the Company may, in response to a Superior Proposal which was not solicited by the Company after and which did not otherwise result from a breach of this Section 5.5(a), terminate this Agreement, if the Board of Directors of the Company determines in good faith, based on such matters as it deems relevant, including consultation with its the Company's outside legal counsel, that it is required to do so in order to comply with its fiduciary duties to the Company's stockholders under Delaware Law, and, concurrently with such termination, causes the Company to pay the fee payable pursuant to Section 9.5(a) on terms substantially similar hereof by reason thereof. Nothing contained in this Agreement shall prohibit the Company or the Company's Board of Directors from taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure required by applicable law or, in the case of the Company's Board of Directors, making any other disclosure to the Company's stockholders that the Company's Board of Directors determines in good faith is required to be made to satisfy the fiduciary duties of the Company's Board of Directors under Delaware Law. The Company shall immediately cease and cause to be terminated and shall cause its affiliates and subsidiaries and its or their respective officers, directors, employees, representatives or agents, to terminate all existing discussions or negotiations, if any, with any persons conducted heretofore with respect to, and no less favorable or that could reasonably be expected to the Company thanlead to, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationProposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Computer Associates International Inc)
No Solicitation by the Company. (ai) From the date of this Agreement through until the earlier of the Effective TimeTime or the date of termination of this Agreement pursuant to Section Table of Contents 6.1 or 6.2(a), the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director or employee of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of, the Company or any of its Subsidiaries to, directly or indirectly through another Person, (iA) solicit, initiate or encourage (including by way of furnishing information or assistance)knowingly encourage, or take any other action designed to facilitate to, or that is likely could reasonably be expected to result infacilitate, any inquiries or the making of any proposal that constitutesoffers with respect to, or is that reasonably likely may be expected to lead to, the submission of any Acquisition Company Takeover Proposal, (iiB) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Company Takeover Proposal or (ivC) make provide any non-public information regarding the Company and its Subsidiaries to any third party or authorize engage in any statement negotiations or recommendation substantive discussions in support connection with any Company Takeover Proposal; provided, however, that prior to receipt of any Acquisition Proposal. Ifthe Company Shareholder Approval, the Company may, in response to a Company Takeover Proposal that was not solicited by the Company and only did not otherwise result from a breach of this Section 4.3(b), subject to the extent thatexecution by the Person making the Company Takeover Proposal of a confidentiality agreement no less favorable to the Company than the Confidentiality Agreement executed by Parent, (i) provide any non-public information regarding the approval of this Agreement by Company and its Subsidiaries to any third party or engage in any negotiations or substantive discussions with such Person regarding any Company Takeover Proposal, in each case only if the Company’s shareholders has not occurred, (ii) the Company Board reasonably of Directors determines in good faith, after consultation with counsel and its outside legal counselfinancial advisors, that such action would actions could reasonably be required expected to result in order for directors of the a Company to comply with their respective fiduciary duties under applicable law in response to a bona fideSuperior Proposal. The Company shall, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent shall cause each of its decision Subsidiaries to, immediately cease and cause to take such action in accordance with be terminated any existing activities, discussions or negotiations by the requirements Company, any of Section 6.07(b)its Subsidiaries or any officer, director or employee of or investment banker, attorney, accountant or other advisor or representative of, the Company may (1) furnish information or any of its Subsidiaries, with any Persons conducted heretofore with respect to any of the foregoing and, subject to the terms of any applicable confidentiality agreements between such Persons and the Company or any of its Subsidiaries, require any such Persons to return to the Company or destroy any confidential information previously provided to such Persons, and any such Persons shall be denied access to any Person making such an Acquisition Proposal pursuant electronic dataroom or similar access to a customary confidentiality agreement (as determined by confidential information relating to the Company after consultation with or any of its outside legal counsel) on terms substantially similar toSubsidiaries. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Subsidiaries and their officers, directors, employees, investment bankers, attorneys, accountants or other advisors or representatives may solicit proposals, enter into agreements and take any other action necessary or desirable to enable the Company or its Subsidiaries to dispose of their interests in each of the Excluded Assets, and no less favorable to the inquiry, proposal or offer from any Person with respect solely thereto shall constitute a Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationTakeover Proposal.
Appears in 1 contract
No Solicitation by the Company. (a) From During the date of this Agreement through the Effective TimePre-Closing Period, the Company shall not, nor directly or indirectly, and shall it permit any of its Subsidiaries tonot, nor shall it directly or indirectly, authorize or permit any of its or its Subsidiaries’ directors, officers or employees the other Acquired Corporations or any investment banker, financial advisor, attorney, accountant or other representative retained by it or Representative of any of its Subsidiaries the Acquired Corporations to, directly or indirectly through another Person, (i) solicit, encourage, initiate or encourage (including by way of furnishing information seek the making, submission or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making announcement of any proposal that constitutes, or is reasonably likely to lead to, any Company Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with respect or in response to an a Company Acquisition ProposalProposal or any similar inquiry, (iii) engage or participate in any discussions or negotiations regarding with any Person (other than Parent or Merger Sub) with respect to any Company Acquisition Proposal or any similar inquiry, (iv) make approve, endorse or authorize recommend any statement or recommendation in support of any Company Acquisition Proposal. If, and only or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that this Section 4.3 shall not prohibit (A) the extent thatCompany, (i) or the Board of Directors of the Company, prior to the approval of this Agreement by the Company’s shareholders has not occurredCompany Stockholders, from furnishing nonpublic information regarding the Acquired Corporations to, or entering into or participating in discussions or negotiations with, any Person in response to an unsolicited, bona fide written Company Acquisition Proposal that the Board of Directors of the Company concludes in good faith, after consultation with its financial advisors, would reasonably be expected to result in a Company Superior Offer if (1) none of the Acquired Corporations or any Representative of any of the Acquired Corporations shall have violated any of the restrictions set forth in this Section 4.3(a) in connection with the receipt of such Company Acquisition Proposal, (ii2) the Board of Directors of the Company Board reasonably determines concludes in good faith, after consultation with its outside legal counsel, that such action would be with respect to such Company Acquisition Proposal is required in order for directors to comply with the fiduciary duties of the Board of Directors of the Company to comply with their respective fiduciary duties the Company Stockholders under applicable law in response to a bona fideLegal Requirements, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii3) the Company provides notice gives to Parent of its decision to take such action in accordance with the requirements of notice required by Section 6.07(b4.3(b), and (4) the Company may (1) furnish furnishes any information with respect provided to the maker of the Company to any Person making such an Acquisition Proposal only pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and such Person on substantially the same terms as the Confidentiality Agreement, and such furnished information is delivered to Parent at substantially the same time (to the extent such information has not been previously furnished by the Company to Parent); or (B) subject to the obligation of the Company and the Company's Board of Directors not to withhold, (2) participate withdraw or modify its recommendation except as expressly set forth in discussions or negotiations regarding such an Section 4.3(d), the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationProposal.
Appears in 1 contract
No Solicitation by the Company. (a) From The Company shall, and it shall cause the date Company Subsidiary to, and it shall use its reasonable best efforts to cause each of this Agreement through the Effective TimeCompany’s and the Company’s Subsidiary’s respective affiliates, directors, officers, employees, agents and representatives (including without limitation any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its subsidiaries, but excluding each of the Parent Equity Sponsors (as defined in Section 8.03), Xxxxxxx X. X’Xxxxx and any investment banker, financial advisor, attorney, accountant or other representative retained by Xxxxxxx X. X’Xxxxx or any of the Parent Equity Sponsors) to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to any Company Takeover Proposal (as defined below). The Company shall not, nor shall it permit any of its Subsidiaries the Company Subsidiary to, nor shall it authorize or permit any of its or its Subsidiaries’ the Company Subsidiary’s directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries the Company Subsidiary to, directly or indirectly through another Personperson, (i) solicit, initiate initiate, encourage or encourage facilitate (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, non-public information) any inquiries or the making of any proposal that constitutes, which constitutes any Company Takeover Proposal or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposalsolicit, (iii) initiate, encourage, facilitate or otherwise participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize Company Takeover Proposal; provided, however, that if, at any statement or recommendation in support of any Acquisition Proposal. If, and only time prior to the extent thatreceipt of the Company Stockholder Approval, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be it is required in order for directors to comply with its fiduciary duties to the stockholders of the Company to comply with their respective fiduciary duties under applicable law law, the Company may, in response to a bona fide, written Acquisition Company Takeover Proposal not solicited in violation of this Section 6.07(a4.02(a) that the Company Board believes in good faith is could reasonably be expected to result in a Company Superior Proposal and (iii) the Company provides as defined in Section 4.02(b)), subject to providing prior written notice to Parent of its decision to take such action in accordance to Parent (the “Company Notice”) and compliance with the requirements of Section 6.07(b4.02(c), following delivery of the Company may Notice (1x) furnish information with respect to the Company to any Person person making such an Acquisition a Company Takeover Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2y) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support a Company Takeover Proposal. For purposes of such an Acquisition Proposal and effect a Change in Recommendation.this Agreement, “
Appears in 1 contract
Samples: Agreement and Plan of Merger (Golden State Vintners Inc)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries subsidiaries to, nor shall it authorize or permit any of its or any of its Subsidiaries’ subsidiaries' directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries subsidiaries to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistanceinformation), or take any other action designed to facilitate intended to, or that is likely to result inwhich could reasonably be expected to, facilitate, any inquiries or the making of any proposal that constitutes, or is could reasonably likely be expected to lead to, any Acquisition Proposal, Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposalinto, (iii) continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposal person any information with respect to, or (iv) make or authorize otherwise cooperate in any statement or recommendation in support of way with, any Acquisition Takeover Proposal. IfNotwithstanding the foregoing, in the event that, notwithstanding compliance with the preceding sentence, the Company receives a bona fide written Takeover Proposal that the Board of Directors of the Company determines in good faith (after consultation with outside counsel and only a financial advisor of nationally recognized reputation) constitutes or is reasonably likely to lead to a Superior Proposal, the Company may, to the extent that, (i) that the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines in good faith, faith (after consultation with its outside legal counsel, ) that such action would be it is required to do so in order for directors of the Company to comply with their respective its fiduciary duties under applicable law in response to a bona fideduties, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Takeover Proposal and (3) authorize any statement or recommendation in support of order to inform itself in a manner required to comply with its fiduciary duties with respect to such an Acquisition Proposal and effect a Change in Recommendation.Takeover 48
Appears in 1 contract
No Solicitation by the Company. (a) The Company shall, and the Company shall direct and use its reasonable efforts to cause the Company's affiliates, directors, officers, employees, agents and representatives (including without limitation any investment banker, financial advisor, attorney, accountant or other representative retained by the Company) to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal. From the date of this Agreement through the Merger Effective TimeTime or the earlier termination of this Agreement, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ the Company's directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) except in accordance with Section 9.1(f) hereof, enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Proposal, or (iv) make or authorize any statement statement, recommendation or recommendation solicitation in support of any Acquisition Proposal. If; provided, however, that prior to the twentieth (20th) day after the Proxy Distribution Date, if, and only to the extent that, (i) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines in good faith, after consultation with its outside legal counseland financial advisors, that such action the failure to do so would reasonably be required in order for directors of expected to breach the Company to comply with their respective Board's fiduciary duties under applicable law law, the Company may, in response to a bona fide, fide written Acquisition Proposal not solicited in violation of this Section 6.07(a7.2(a) that the Board of Directors of the Company Board believes in good faith is constitutes a Superior Proposal and Proposal, subject to providing forty-eight (iii48) the Company provides hours prior written notice to Parent Cathay of its the Board's decision to take such action in accordance and identifying the person making the proposal and all the material terms and conditions of such proposal (the "Company Notice") and compliance with the requirements Section 7.2(b) hereof, following delivery of Section 6.07(b), the Company may Notice, (1) furnish information with respect to the Company to any Person person making such an Acquisition a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less more favorable to the Company than, such person than the terms contained in any such agreement between the Company and ParentCathay, and (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationSuperior Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cathay General Bancorp)
No Solicitation by the Company. (aA) From the date of this Agreement through the Effective Time, the The Company shall notnot directly or indirectly, nor and shall it permit any of its Subsidiaries to, nor shall it not authorize or permit any of its or its Subsidiaries’ directors, officers or employees the other Company Entities or any investment banker, financial advisor, attorney, accountant or other representative retained by it or Representative of any of its Subsidiaries to, the Company Entities directly or indirectly through another Personto, (i) solicit, initiate initiate, knowingly encourage or encourage (including by way knowingly induce, or facilitate the making, submission or announcement of furnishing information or assistance), any Company Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is would reasonably likely be expected to lead to, any to a Company Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Company Entities to any Person in connection with respect or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could lead to a Company Acquisition Proposal, (iii) participate engage in any discussions or negotiations regarding with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (ivv) make enter into any letter of intent or authorize similar document or any statement Contract contemplating or recommendation in support of otherwise relating to any Company Acquisition Proposal. IfTransaction; provided, and only however, that prior to the extent that, (i) the approval adoption of this Agreement by the Company’s shareholders has Required Company Stockholder Vote, this Section 4.3(a) shall not occurredprohibit the Company from furnishing nonpublic information regarding the Company Entities to, or entering into discussions with, any Person in response to a Company Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company Entities shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 4.3, (ii2) the board of directors of the Company Board reasonably determines concludes in good faith, after consultation with having taken into account the advice of its outside legal counsel, that such action would be is required in order for the board of directors of the Company to comply with their respective its fiduciary duties obligations to the Company's stockholders under applicable law law, (3) at least three business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and containing customary "standstill" provisions, and (4) at least three business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action inconsistent with any of the provisions set forth in response the preceding sentence by any Representative of any of the Company Entities, whether or not such Representative is purporting to act on behalf of any of the Company Entities, shall be deemed to constitute a bona fide, written Acquisition Proposal not solicited in violation breach of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined 4.3 by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Med-Design Corp)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a6.06(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b6.06(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company Parent than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change withhold, withdraw, amend or modify the recommendation referred in RecommendationSection 6.02.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Banknorth Group Inc/Me)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, agrees that neither it nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its the officers and directors of it or its Subsidiaries shall, and that it shall use all reasonable efforts to cause its and its Subsidiaries’ directors' employees, officers or employees or agents and representatives (including any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries Subsidiaries) not to (and shall not authorize any of them to), directly or indirectly through another Person, indirectly: (i) solicit, initiate initiate, encourage, facilitate or encourage induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal with respect to itself, (including by way of furnishing ii) participate in any discussions or negotiations regarding, or furnish to any person or entity any nonpublic information or assistance)with respect to, or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, constitutes or is may reasonably likely be expected to lead to, any Acquisition ProposalProposal with respect to itself, (iiiii) engage in discussions with any person or entity with respect to any Acquisition Proposal with respect to itself, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal with respect to itself (except to the extent specifically permitted pursuant to Section 6.11 and Section 8.1(g)), or (v) enter into any letter of intent or similar document or any contract, agreement with respect or commitment contemplating or otherwise relating to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information transaction contemplated thereby with respect to itself (except as permitted pursuant to Section 6.11 and Section 8.1(g)). The Company and its Subsidiaries shall, and the Company shall use all reasonable efforts to cause its and its Subsidiaries' officers, directors, employees, agents and representatives (including any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined investment banker, attorney or accountant retained by the Company after consultation with it or any of its outside legal counselSubsidiaries) on terms substantially similar to, immediately cease any and no less favorable to the Company thanall existing activities, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an with any third parties conducted heretofore with respect to any Acquisition Proposal with respect to itself. The Company shall ensure that its officers, directors and (3) authorize any statement or recommendation in support key employees and its investment bankers, attorneys and other representatives are aware of such an Acquisition Proposal and effect a Change in Recommendationthe provisions of this Section.
Appears in 1 contract
No Solicitation by the Company. (ai) From Except as permitted by this Section 4.5(a), without the date prior written consent of this Agreement through Orion, none of the Effective TimeCompany, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any Representative of any of its the Company or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, shall directly or indirectly through another Person(A) initiate, (i) solicit, initiate seek or knowingly encourage (including by way of furnishing information or assistance)support any inquiries, proposals or take any other action designed to facilitate offers that constitute or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is may reasonably likely be expected to lead to, a Company Acquisition Proposal (as defined below), (B) engage or participate in, or knowingly facilitate, any discussions or negotiations regarding, or furnish any nonpublic information to any Person in connection with, any inquiries, proposals or offers that constitute, or may reasonably be expected to lead to, a Company Acquisition Proposal, or (iiC) enter into any letter of intent, agreement with respect in principle or other similar type of agreement relating to an a Company Acquisition Proposal, (iii) participate or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or resolve, propose or agree to do any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. Ifthe foregoing; provided, and only however, that prior to the extent that, (i) the adoption and approval of this Agreement by the Company’s shareholders Company Stockholders pursuant to the Company Stockholder Written Consent, the Company may take the following actions in response to an unsolicited bona fide written Company Acquisition Proposal received after the date of this Agreement that the Board of Directors of the Company has not occurreddetermined, in good faith, after consultation with its outside counsel and independent financial advisors, constitutes, or would reasonably be expected to lead to, a Company Superior Offer: (ii1) furnish nonpublic information regarding the Company to the third party making the Company Acquisition Proposal (a “Company Qualified Bidder”) and (2) engage in discussions or negotiations with the Company Qualified Bidder and its representatives with respect to such Company Acquisition Proposal; provided that (w) the Company receives from the Company Qualified Bidder an executed confidentiality agreement the terms of which are not less restrictive to such Person than those contained in the Confidentiality Agreement, and containing additional provisions that expressly permit the Company to comply with the terms of this Section 4.5 (a copy of such confidentiality agreement shall promptly, and in any event within twenty-four (24) hours, be provided to Orion for informational purposes only), (x) the Company contemporaneously supplies to Orion any such nonpublic information or access to any such nonpublic information to the extent it has not been previously provided or made available to Orion, (y) neither the Company nor any Subsidiary or Representative of the Company or its Subsidiaries has breached this Section 4.5, and (z) the Board reasonably of Directors of the Company determines in good faith, after consultation with its outside legal counselcounsel and financial advisors, that taking such action actions would be required in order for directors to comply with the fiduciary duties of the Board of Directors of the Company to comply with their respective fiduciary duties under applicable law Laws. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in response the preceding sentence by any Representative of the Company or any of its Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company or any of its Subsidiaries, shall be deemed to constitute a bona fide, written Acquisition Proposal not solicited in violation breach of this Section 6.07(a4.5(a)(i) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (OvaScience, Inc.)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of, the Company or any of its Subsidiaries Company Subsidiary to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making submission of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition ProposalCompany Takeover Proposal (as defined below), (ii) enter into any agreement with respect to an Acquisition Proposal, any Company Takeover Proposal or (iii) participate provide any non-public information regarding the Company to any third party or engage in any negotiations or substantive discussions in connection with any Company Takeover Proposal; provided, however, that (A) prior to receipt of the Company Stockholder Approval, the Company may, in response to a Company Takeover Proposal that was not solicited by the Company and that did not otherwise result from a breach of this Section 4.02(a), provide any non-public information regarding itself to any third party or engage in any negotiations or substantive discussions with such person regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation Company Takeover Proposal, in support of any Acquisition Proposal. If, and each case only to the extent that, (i) the approval of this Agreement by if the Company’s shareholders has not occurred, (ii) the Company 's Board reasonably of Directors determines in good faith, after consultation with counsel and its outside legal counselfinancial advisors, that failing to take such action would be required create a reasonable possibility of a breach of the fiduciary duties of the Company's Board of Directors, and (B) nothing contained in order for directors this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Takeover Proposal or prevent the Company's Board of Directors from taking any action permitted by Section 5.01(d). Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any Company Subsidiary or any investment banker, attorney, accountant or other advisor or representative of the Company or any Company Subsidiary, whether or not such person is purporting to comply act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 4.02(a) by the Company. For purposes of this Agreement, "Company Takeover Proposal" means any proposal for a merger, consolidation or other business combination involving the Company or a Company Significant Subsidiary or any proposal or offer to acquire in any manner, directly or indirectly, more than 30% of any class of voting securities of the Company or of a Company Significant Subsidiary (other than where such Company Significant Subsidiary's securities directly or indirectly represent an economic interest in less than 30% of the assets of the Company and the Company Subsidiaries, taken as a whole), including any proposal or offer relating to the acquisition by the Company or a Company Significant Subsidiary in any manner, directly or indirectly, of any securities or assets of another person in consideration for the issuance of more than 30% of any class of voting securities of the Company or of a Company Significant Subsidiary (other than where such Company Significant Subsidiary's securities directly or indirectly represent an economic interest in less than 30% of the assets of the Company and the Company Subsidiaries, taken as a whole), or assets representing a substantial portion of the assets of the Company and the Company Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. The Company shall, and shall cause each Company Subsidiary to, immediately cease and cause to be terminated any existing activities, discussions or nego- tiations by the Company, any Company Subsidiary or any officer, director or employee of or investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary, with their respective fiduciary duties under applicable law in response any parties conducted heretofore with respect to any of the foregoing. Any action taken by the Company, any Company Subsidiary or any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary with or with respect to any such party on or prior to the date hereof, shall be deemed not to constitute a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a4.02(a) that and shall not in and of itself constitute the solicitation of a Company Board believes in good faith is a Superior Takeover Proposal and (iii) the Company provides notice to Parent of its decision to take even if such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained actions result in any such agreement between party making a Company Takeover Proposal after the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support date of such an Acquisition Proposal and effect a Change in Recommendationthis Agreement.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of Except as expressly permitted in this Agreement through the Effective TimeSection 5.5, the Company shall not, nor and shall it permit any of cause its Subsidiaries toand its and their respective officers, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any employees, investment bankerbankers, attorneys, accountants, financial advisoradvisors, attorneyaffiliates, accountant or agents and other representative retained by it or any of its Subsidiaries representatives (the “Agents”) not to, directly or indirectly through another Personindirectly, (i) initiate, solicit, initiate knowingly encourage or encourage knowingly facilitate (including by way of furnishing information or assistancenon-public information), or take any other action designed to facilitate or that is likely to result inlead to, any inquiries or the making or submission of any proposal that constitutes, or is would reasonably likely be expected to lead to, any a Company Acquisition Proposal, (ii) enter into participate or engage in discussions or negotiations with, or furnish any agreement with respect non-public information or data to, any Person that has made a Company Acquisition Proposal or any inquiry or proposal that would reasonably be expected to an lead to a Company Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any accept a Company Acquisition Proposal or enter into any agreement (other than an Acceptable Company Confidentiality Agreement in circumstances contemplated in this Section 5.5), including any letter of intent or agreement in principle, providing for or relating to a Company Acquisition Proposal, (iv) make amend or authorize grant any statement waiver, release or recommendation in support modification under, or fail to enforce, any standstill or similar agreement with respect to any class of equity securities of the Company or any Acquisition Proposalof its Subsidiaries, or (v) resolve to do any of the foregoing. IfWithout limiting the foregoing, and only to it is agreed that any action taken by any of the extent Company’s Subsidiaries or by any Agents of the Company or any of its Subsidiaries that, (i) the approval of this Agreement if taken by the Company’s shareholders has not occurred, would constitute a breach of this Section 5.5 shall constitute a breach of this Section 5.5 by the Company, regardless of (x) whether such Agent is authorized to take such action, (y) whether such Agent is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, and (z) any contrary instruction given to such Agent by the Company or any of its other Agents pursuant to this Section 5.5 or otherwise. Notwithstanding anything to the contrary in this Agreement, the Company and the Company Board, as applicable, may take any actions described in clause (ii) of this Section 5.5(a) with respect to a third-party if at any time prior to obtaining the Company Requisite Approval (A) the Company receives a written Company Acquisition Proposal from such third-party that the Company Board believes in good faith is bona fide, (B) the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that such proposal constitutes, or would reasonably be expected to lead to, a Company Superior Proposal, and (C) the Company Board determines in good faith, after consultation with its outside legal counsel, that the failure to participate in such action negotiations or discussions or to furnish such information or data to such third-party would be required in order for directors of inconsistent with the Company to comply with their respective Board’s fiduciary duties under applicable law in response to a bona fideLegal Requirements, written provided that (1) such Company Acquisition Proposal was received after the date of this Agreement, such Company Acquisition Proposal was not solicited in in, or otherwise was not the result of a, violation of this Section 6.07(a) that the 5.5 and such Company Board believes in good faith is a Superior Acquisition Proposal and has not been withdrawn, (iii2) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of notice required by Section 6.07(b), the Company may (15.5(e) furnish information with respect to such Company Acquisition Proposal and (3) the Company shall not deliver any information to any Person making such an Acquisition Proposal pursuant to third-party without entering into a customary confidentiality agreement (as determined by with such third-party containing limitations on the Company after consultation with its outside legal counsel) on terms use and disclosure of non-public information furnished to such third-party that are substantially similar to, and are no less favorable to the Company in the aggregate than, the terms contained in any of the Confidentiality Agreement; provided that such confidentiality agreement between does not contain provisions that would prohibit the Company and Parent, from providing any information to Parent in accordance with this Section 5.5 or otherwise prohibits the Company from complying with the provisions of this Section 5.5 (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation“Acceptable Company Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Frank's International N.V.)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (iix) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a5.11(a) that the Company Board believes in good faith is a Superior Proposal; provided, however, that no Acquisition Proposal shall be considered a Superior Proposal unless, during the three (3) Business Day period following notification to the Buyer of the Superior Proposal, the Company and its advisors shall have negotiated in good faith with Buyer to make adjustments in the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal, and such negotiations fail to result in the necessary adjustments to this Agreement; and (iiiy) the Company provides notice to Parent Buyer of its decision to take such action in accordance with the requirements of Section 6.07(b5.11(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company Buyer than, the terms contained in any such agreement between the Company and ParentBuyer, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change withhold, withdraw, amend or modify the recommendation referred to in RecommendationSection 5.04.
Appears in 1 contract
Samples: Agreement and Plan of Merger (New Hampshire Thrift Bancshares Inc)
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement through the Effective TimeSection 6.3, the Company shall, and shall not, nor shall it permit any cause each of its Subsidiaries to, nor and shall it authorize or permit any of use its or reasonable best efforts to cause its and its Subsidiaries’ directorsRepresentatives: (i) to immediately cease and cause to be terminated any solicitation, officers encouragement, discussions or employees or negotiations with any investment banker, financial advisor, attorney, accountant or persons (other representative retained by it or any of than Parent and its Subsidiaries (including Acquiror) and their respective Representatives) that may be ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly through another Personindirectly, (iA) solicit, initiate initiate, knowingly encourage or encourage (including by way of furnishing information or assistance), or take any other action designed to knowingly facilitate or that is likely to result in, any inquiries regarding, or the making of any proposal or offer that constitutes, or is would reasonably likely be expected to lead to, any Acquisition a Company Takeover Proposal, (iiB) enter into any agreement with respect to an Acquisition Proposalengage in, (iii) continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition other person any information in connection with or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, a Company Takeover Proposal (other than (x) solely in response to an unsolicited inquiry, to refer the inquiring person to the terms of this Section 6.3 and to limit its communication exclusively to such referral or (ivy) make or authorize upon receipt of a bona fide, unsolicited written Company Takeover Proposal from any statement or recommendation in support person that did not result from a breach of any Acquisition Proposal. Ifthis Section 6.3, and only solely to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) necessary to ascertain facts or clarify terms with respect to a Company Takeover Proposal for the Company Board reasonably of Directors to be able to have sufficient information to make the determination described in Section 6.3(c)), (C) approve, adopt, publicly recommend or enter into, or publicly propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.3(c)), (D) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) inapplicable to any person (other than Acquiror and its Affiliates) or to any transactions constituting or contemplated by a Company Takeover Proposal, (E) otherwise cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations or (F) resolve or agree to do any of the foregoing. The Company shall not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or knowingly fail to enforce, any confidentiality obligations with respect to a Company Takeover Proposal or similar matter or any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party; provided that, prior to the time the Company Stockholder Approval is obtained, but not after, the Company may waive any standstill or similar provisions to the extent necessary to permit a person or group to make, on a confidential basis to the Company Board of Directors, a Company Takeover Proposal, conditioned upon such person agreeing to disclosure of such Company Takeover Proposal to Acquiror, in each case as contemplated by this Section 6.3 (provided, further, that the Company may only take such action if the Company Board of Directors determines in good faith, faith (after consultation with its outside financial advisor and outside legal counsel, ) that the failure of the Company Board of Directors to take such action would reasonably be required in order for directors of the Company expected to comply be inconsistent with their respective its fiduciary duties under applicable law Law). None of the Company or its Subsidiaries shall enter into any confidentiality agreement or other agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from (x) providing to Acquiror or any of its Affiliates or Representatives the information required to be provided pursuant to this Section 6.3 or (y) otherwise complying with this Section 6.3. The Company and Acquiror hereby agree that all standstill or similar provisions in response to a bona fidethe Confidentiality Agreement shall, written Acquisition Proposal not solicited in violation as of the date of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal Agreement, terminate and (iii) the Company provides notice to Parent be of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, no further force and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendationeffect.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, Neither the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of the officers and directors of any of them shall, and the Company shall direct and use its or reasonable best efforts to cause its and its Subsidiaries’ directors' employees, officers or employees or agents and representatives, including any investment banker, financial advisor, attorney, attorney or accountant or other representative retained by it or any of its Subsidiaries (the Company, its Subsidiaries and their respective officers, directors, employees, agents and representatives being the "Company Representatives") not to, directly or indirectly through another Person, (i) initiate, solicit, initiate encourage or encourage otherwise knowingly facilitate any inquiries (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries otherwise) or the making of any proposal Acquisition Proposal or (ii) participate in any discussions or engage in any negotiations concerning an Acquisition Proposal; provided, however, that constitutesthe Company's Board of Directors may, or may authorize the Company Representatives to, in response to an unsolicited bona fide written Acquisition Proposal that the Board of Directors of the Company concludes in good faith is, or is reasonably likely to lead tobecome, any Acquisition a Superior Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1x) furnish information with respect to the Company and its Subsidiaries to any Person making such an Acquisition Superior Proposal pursuant to a customary confidentiality agreement and (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2y) participate in discussions or negotiations regarding such Superior Proposal; provided that, prior to taking any such action, the Company provides reasonable advance notice to the Parent that it is taking such action. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to the actions described in clauses (i) and (ii) above. The Company agrees that it will take the necessary steps to inform promptly the Company Representatives of the obligations undertaken in this Section 5.7. The Company also will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to return or destroy (and (3certify the destruction of, if required under the terms of the confidentiality agreement) authorize all confidential information heretofore furnished to such Person by or on behalf of the Company or any statement or recommendation of its subsidiaries in support accordance with the terms of such an Acquisition Proposal confidentiality agreement, and effect a Change in Recommendation.the Company will use its best efforts, subject to Section 5.7(b), to enforce the provisions of such confidentiality agreements, including, without limitation, any standstill provisions. For purposes of this Agreement "
Appears in 1 contract
Samples: Isp Opco Holdings Inc
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall notnot directly or indirectly, nor and shall it permit any of its Subsidiaries to, nor shall it not authorize or permit any of its or its Subsidiaries’ directors, officers or employees the other Company Entities or any investment banker, financial advisor, attorney, accountant or other representative retained by it or Representative of any of its Subsidiaries to, the Company Entities directly or indirectly through another Personto, (i) solicit, initiate initiate, knowingly encourage or encourage (including by way knowingly induce, or facilitate the making, submission or announcement of furnishing information or assistance), any Company Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is would reasonably likely be expected to lead to, any to a Company Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Company Entities to any Person in connection with respect or in response to a Company Acquisition Proposal or an inquiry or indication of interest that could lead to a Company Acquisition Proposal, (iii) participate engage in any discussions or negotiations regarding with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (ivv) make enter into any letter of intent or authorize similar document or any statement Contract contemplating or recommendation in support of otherwise relating to any Company Acquisition Proposal. IfTransaction; provided, and only however, that prior to the extent that, (i) the approval adoption of this Agreement by the Company’s shareholders has Required Company Stockholder Vote, this Section 4.3(a) shall not occurredprohibit the Company from furnishing nonpublic information regarding the Company Entities to, or entering into discussions with, any Person in response to a Company Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company Entities shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 4.3, (ii2) the board of directors of the Company Board reasonably determines concludes in good faith, after consultation with having taken into account the advice of its outside legal counsel, that such action would be is required in order for the board of directors of the Company to comply with their respective its fiduciary duties obligations to the Company's stockholders under applicable law law, (3) at least three business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of the Company and containing customary "standstill" provisions, and (4) at least three business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any action inconsistent with any of the provisions set forth in response the preceding 49 sentence by any Representative of any of the Company Entities, whether or not such Representative is purporting to act on behalf of any of the Company Entities, shall be deemed to constitute a bona fide, written Acquisition Proposal not solicited in violation breach of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined 4.3 by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Specialized Health Products International Inc)
No Solicitation by the Company. (a) From The Company shall, and shall cause its Subsidiaries and Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Company Acquisition Proposal, request the date return or destruction of this Agreement through all confidential information previously provided to such parties by or on behalf of the Effective TimeCompany or its Subsidiaries and immediately prohibit any access by any Person (other than Parent and its Representatives) to any physical or electronic data room relating to a possible Company Acquisition Proposal. During the Pre-Closing Period, the Company shall notnot directly or indirectly, nor and shall it permit any of cause its Subsidiaries not to, nor and shall it authorize or permit use its reasonable best efforts to cause any Representative of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it the Company or any of its Subsidiaries not to, directly or indirectly through another Personindirectly, (i) solicit, initiate or initiate, facilitate, knowingly encourage (including by way of furnishing information or assistanceconfidential information), or induce or take any other action designed that could reasonably be expected to facilitate lead to any inquiries, proposals or indications of interest that is likely constitute the making, submission, or announcement of any Company Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or any of its Subsidiaries to result inany Person in connection with or in response to a Company Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to a Company Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse, or recommend any Company Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, this Section 5.5(a) shall not prohibit the Company from furnishing nonpublic information regarding the Company and its Subsidiaries to, or entering into discussions with, any inquiries or the making of any proposal Person in response to a written, bona fide Company Acquisition Proposal that constitutesis, or is reasonably likely to lead toresult in, a Superior Company Proposal that is submitted to the Company by such Person (and not withdrawn prior to the furnishing of such information or such discussions) if (1) the Company, its Subsidiaries or their respective Representatives shall not have violated any Acquisition Proposalof the restrictions set forth in this Section 5.5(a), (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii2) the Company Board reasonably determines concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would be required in order for directors inconsistent with its fiduciary obligations to the Company’s stockholders under applicable Legal Requirements, (3) prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, (4) the Company receives from such Person an executed confidentiality agreement containing limitations on the use and disclosure of nonpublic written and oral information furnished to such Person by or on behalf of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company thanin the aggregate than the terms of the Confidentiality Agreement, and (5) prior to furnishing any such nonpublic information to such Person, the terms contained in any Company furnishes such agreement between nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and Parentagrees that if any of its directors, (2) participate executive officers or any Company Designated Representative takes any action that, if taken by the Company, would violate the restrictions set forth in discussions or negotiations regarding the preceding sentence, then such an Acquisition Proposal and (3) authorize any statement or recommendation in support action shall be deemed to constitute a breach of such restriction by the Company. In furtherance of its obligations hereunder, to the extent that the Company has Knowledge that any of its Representatives has taken an Acquisition Proposal and effect a Change action that, if taken by the Company, would violate the restrictions set forth in Recommendationthis Section 5.5, then the Company shall immediately instruct such Representative to cease such action.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seventy Seven Energy Inc.)
No Solicitation by the Company. (a) From During the date of this Agreement through the Effective TimePre-Closing Period, the Company shall notnot directly or indirectly, nor and shall it permit any of its Subsidiaries to, nor shall it not authorize or permit any of its or its Subsidiaries’ directors, officers or employees the other Acquired Corporations or any investment banker, financial advisor, attorney, accountant or other representative retained by it or Representative of any of its Subsidiaries to, the Acquired Corporations directly or indirectly through another Personto, (i) take any action to solicit, initiate initiate, induce or encourage (including by way of furnishing information or assistance), or take any other action designed seek to facilitate the making, submission or that is likely to result in, any inquiries or the making announcement of any proposal that constitutes, or is reasonably likely to lead to, any Company Acquisition Proposal, (ii) enter into furnish any agreement nonpublic information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with respect or in response to a Company Acquisition Proposal or an inquiry or indication of interest that the Company reasonably believes could be expected to lead to a Company Acquisition Proposal, (iii) participate engage in any discussions or negotiations regarding with any Person with respect to any Company Acquisition Proposal or Proposal, (iv) make approve, endorse or authorize recommend any statement Company Acquisition Proposal, or recommendation (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that this Section 4.3 shall not prohibit (A) the Company, or the Board of Directors of the Company, from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions or negotiations with, any Person in support response to a Company Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any Acquisition Proposal. If, and only to of the extent thatAcquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (i2) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines concludes in good faith, after consultation with its outside legal counsel, that such action would be with respect to such Company Superior Offer is required in order for directors to comply with the fiduciary duties of the Board of Directors of the Company to comply with their respective fiduciary duties the Company shareholders under applicable law in response to a bona fideLegal Requirements, written Acquisition Proposal not solicited in violation and (3) the Board of this Section 6.07(a) that the Company Board believes Directors determines in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b)faith, the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel, that taking such action would be reasonably likely to lead to the consummation of a Company Superior Offer, (4) on terms substantially similar the Company gives Parent prompt written notice (in any event, within 24 hours of receipt of any Company Acquisition Proposal) of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and no less favorable the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person or any of such Person’s Representatives by or on behalf of the Company, and (5) the Company furnishes such nonpublic information to such Person and to Parent at substantially the same time (to the extent such nonpublic information has not been previously furnished by the Company thanto Parent); or (B) the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal. Without limiting the generality of the foregoing, the terms contained Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such agreement between Representative is purporting to act on behalf of any of the Company and ParentAcquired Corporations, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support shall be deemed to constitute a breach of such an Acquisition Proposal and effect a Change in Recommendationthis Section 4.3 by the Company.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of Except as expressly permitted by this Agreement through the Effective TimeSection 6.3, the Company shall, and shall not, nor shall it permit any cause each of its Subsidiaries to, nor and shall it authorize or permit any of use its or reasonable best efforts to cause its and its Subsidiaries’ directorsRepresentatives: (i) to immediately cease and cause to be terminated any solicitation, officers encouragement, discussions or employees or negotiations with any investment banker, financial advisor, attorney, accountant or persons (other representative retained by it or any of than Parent and its Subsidiaries (including Acquiror) and their respective Representatives) that may be ongoing with respect to a Company Takeover Proposal and (ii) not to, directly or indirectly through another Personindirectly, (iA) solicit, initiate initiate, knowingly encourage or encourage (including by way of furnishing information or assistance), or take any other action designed to knowingly facilitate or that is likely to result in, any inquiries regarding, or the making of any proposal or offer that constitutes, or is would reasonably likely be expected to lead to, any Acquisition a Company Takeover Proposal, (iiB) enter into any agreement with respect to an Acquisition Proposalengage in, (iii) continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition other person any information in connection with or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, a Company Takeover Proposal (other than (x) solely in response to an unsolicited inquiry, to refer the inquiring person to the terms of this Section 6.3 and to limit its communication exclusively to such referral or (ivy) make or authorize upon receipt of a bona fide, unsolicited written Company Takeover Proposal from any statement or recommendation in support person that did not result from a breach of any Acquisition Proposal. Ifthis Section 6.3, and only solely to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) necessary to ascertain facts or clarify terms with respect to a Company Takeover Proposal for the Company Board reasonably of Directors to be able to have sufficient information to make the determination described in Section 6.3(c)), (C) approve, adopt, publicly recommend or enter into, or publicly propose to approve, adopt, recommend or enter into, any letter of intent or similar document, agreement, commitment, or agreement in principle (whether written or oral, binding or nonbinding) with respect to a Company Takeover Proposal (other than an Acceptable Confidentiality Agreement entered into in accordance with Section 6.3(c)), (D) take any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including any transaction under, or a third party becoming an “interested stockholder” under, Section 203 of the DGCL) inapplicable to any person (other than Acquiror and its Affiliates) or to any transactions constituting or contemplated by a Company Takeover Proposal, (E) otherwise cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations or (F) resolve or agree to do any of the foregoing. The Company shall not, and shall cause its Subsidiaries not to, release any third party from, or waive, amend or modify any provision of, or grant permission under, or knowingly fail to enforce, any confidentiality obligations with respect to a Company Takeover Proposal or similar matter or any standstill provision in any agreement to which the Company or any of its Subsidiaries is a party; provided, that, prior to the time the Company Stockholder Approval is obtained, but not after, the Company may waive any standstill or similar provisions to the extent necessary to permit a person or group to make, on a confidential basis to the Company Board of Directors, a Company Takeover Proposal, conditioned upon such person agreeing to disclosure of such Company Takeover Proposal to Acquiror, in each case as contemplated by this Section 6.3 (provided, further, that the Company may only take such action if the Company Board of Directors determines in good faith, faith (after consultation with its outside financial advisor and outside legal counsel, ) that the failure of the Company Board of Directors to take such action would reasonably be required in order for directors of the Company expected to comply be inconsistent with their respective its fiduciary duties under applicable law Law). None of the Company or its Subsidiaries shall enter into any confidentiality agreement or other agreement subsequent to the date hereof which prohibits the Company or any of its Subsidiaries from (x) providing to Acquiror or any of its Affiliates or Representatives the information required to be provided pursuant to this Section 6.3 or (y) otherwise complying with this Section 6.3. The Company and Acquiror hereby agree that all standstill or similar provisions in response to a bona fidethe Confidentiality Agreement shall, written Acquisition Proposal not solicited in violation as of the date of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal Agreement, terminate and (iii) the Company provides notice to Parent be of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, no further force and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendationeffect.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries subsidiaries to, nor shall it or authorize or permit any director, officer or employee of the Company or any of its or its Subsidiaries’ directors, officers or employees subsidiaries or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of the Company or any of its Subsidiaries subsidiaries (collectively, the “Company Representatives”) to, directly or indirectly through another Personindirectly, (i) solicit, initiate initiate, induce or knowingly encourage any Company Takeover Proposal (including by way of furnishing information as defined below) or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposalinto, (iii) continue or otherwise participate in any discussions or negotiations regarding regarding, or furnish to any Acquisition Proposal Person any information or (iv) data or afford access to the properties, books or records of the Company or any of its subsidiaries with respect to any Company Takeover Proposal, or otherwise facilitate any effort or attempt to make or authorize implement any statement Company Takeover Proposal, in each case other than a Company Takeover Proposal made by Parent; provided, however, that, at any time prior to acceptance of the Company Shares pursuant to the Offer, the Board of Directors may, in response to a Company Takeover Proposal that the Board of Directors determines in good faith, after consultation with its financial advisor, constitutes or recommendation in support could reasonably be expected to lead to a Company Takeover Proposal that is more favorable to the stockholders of the Company (taking into account the Person making the Company Takeover Proposal, the consideration offered, the likelihood and timing of consummation (including the legal, financial and regulatory Table of Contents aspects of the Company Takeover Proposal) as well as any Acquisition other factors deemed relevant by the Board of Directors) than the proposal evidenced by this Agreement (a “Company Competitive Proposal. If”), (x) furnish information with respect to the Company and its subsidiaries to the Person making this Company Competitive Proposal (and its representatives) pursuant to a customary confidentiality agreement (which confidentiality agreement contains terms that are equivalent to, and only in no respect less favorable to the extent thatCompany than, the terms of the Confidentiality Agreement, dated August 30, 2002, between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”)), and (y) participate in discussions or negotiations with the Person making this Company Competitive Proposal (and its representatives) regarding this Company Competitive Proposal, provided that (i) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably Directors determines in good faith, after consultation with its outside legal counsel, that the failure to provide such action information or engage in such negotiation, would be required in order for directors inconsistent with the Board of the Company to comply with their respective Directors’ fiduciary duties under applicable law in response Law and (ii) a copy of all the information provided to a bona fide, written Acquisition Proposal such Person is delivered simultaneously to Parent if it has not solicited in violation previously been furnished or made available to Parent. Promptly after the execution of this Section 6.07(a) that Agreement, the Company Board believes in good faith is a Superior will, and will cause each of its subsidiaries and each of the Company Representatives to, (i) terminate all discussions or negotiations with all third parties regarding any Company Takeover Proposal and (iiiii) request the Company provides notice to Parent prompt return or destruction of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish all confidential information with respect relating to the Company or any of its subsidiaries previously furnished to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendationthird parties.
Appears in 1 contract
No Solicitation by the Company. (a) From and after the date of this Agreement through until the Effective Timetermination of this Agreement, the Company shall, and will use its best efforts to cause its officers, directors, employees and other representatives and agents (collectively, "Company Representatives") to, immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, any Company Takeover Proposal. From and after the date of this Agreement until the termination of this Agreement, the Company shall not, nor shall it permit any of and will use its Subsidiaries to, nor shall it authorize or permit any of reasonable best efforts to cause its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries Company Representatives not to, directly or indirectly through another Personindirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information or assistance), or take any other action designed to, or which would reasonably be expected to, facilitate any inquiries or the making of a Company Takeover Proposal, (ii) approve or recommend or propose to facilitate approve or that is likely recommend, or enter into any agreement, arrangement or understanding with respect to result inany Company Takeover Proposal (other than a confidentiality agreement entered into in accordance with the provisions of this Section 6.3(a)) or (iii) other than informing Persons of the existence of the provisions contained in clause (i) of this sentence, participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to this Agreement) any non-public information or data with respect to the Company in connection with any inquiries or the making of any proposal that constitutes, or is would reasonably likely be expected to lead to, any Acquisition Company Takeover Proposal; provided, however, that at any time prior to obtaining the Company Stockholder Merger Approval, (ii1) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fideCompany Takeover Proposal (A) that has not been solicited, written Acquisition initiated or knowingly encouraged by the Company or any Company Representative and (B) that the Board of Directors of the Company determines in good faith (after consultation with outside counsel) may reasonably be expected to constitute or constitutes a Company Superior Proposal (as defined below), and which Company Takeover Proposal was made after the date hereof and did not solicited in violation otherwise result, directly or indirectly, from a breach by the Company of this Section 6.07(a6.3, and (2) that after the Company Board believes in good faith is a Superior gives Parent written notice of such determination (which notice shall include the material terms of such Company Takeover Proposal and (iiithe identity of the person making it) the Company provides notice may, subject to Parent of its decision to take such action in accordance compliance with the requirements of this Section 6.07(b6.3(a), the Company may directly or indirectly, (1x) furnish information with respect to the Company to any the Person making such an Acquisition Company Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement (as determined by which agreement shall be no more favorable, in any material respect, to such Person than the Company after consultation with its outside legal counsel) on terms substantially similar toParent Confidentiality Agreement), and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2y) participate in discussions or negotiations with the Person making such Company Takeover Proposal (and its representatives) regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany Takeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wellsford Real Properties Inc)
No Solicitation by the Company. (ai) From the date of Unless and until this Agreement through is terminated in accordance with the Effective Timeprovisions of Article VII, without the prior written consent of Parent, neither the Company nor any Representative of the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person(A) initiate, (i) solicit, initiate seek or knowingly encourage (including by way of furnishing information or assistance)support any inquiries, proposals or take any other action designed to facilitate offers that constitute or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is may reasonably likely be expected to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iiiB) engage or participate in in, or knowingly facilitate, any discussions or negotiations regarding any inquiries, proposals or offers that constitute, or may reasonably be expected to lead to, an Acquisition Proposal Proposal, (C) furnish to any Person other than Parent or (iv) make or authorize Merger Sub any statement or recommendation in support non-public information that could reasonably be expected to be used for the purposes of formulating any Acquisition Proposal. If, (D) waive, terminate, modify or release any Person (other than Parent and its Affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, or (E) enter into any letter of intent, agreement in principle or other similar type of agreement relating to an Acquisition Proposal, or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or resolve, propose or agree to do any of the foregoing; provided, however, that prior to obtaining the Company Member Approval, the Company may take the following actions in response to an unsolicited bona fide written Acquisition Proposal received by the Company or its Representatives after the date hereof that the Company Board has determined, in good faith, after consultation with its outside counsel and independent financial advisors, constitutes, or would reasonably be expected to lead to, a Company Superior Proposal: (1) furnish nonpublic information regarding the Company to the Person making the Acquisition Proposal to the Company (a “Company Qualified Bidder”) and (2) engage in discussions or negotiations with the Company Qualified Bidder and its representatives with respect to such Acquisition Proposal; provided that (w) the Company receives from the Company Qualified Bidder an executed confidentiality agreement the terms of which are not less restrictive to such Person than those contained in the Confidentiality Agreement, and only containing additional provisions that expressly permit the Company to comply with the terms of this Section 5.06 (a copy of such confidentiality agreement shall promptly, and in any event within twenty-four (24) hours, be provided to Parent for informational purposes only), (x) the Company contemporaneously supplies to Parent any such nonpublic information or access to any such nonpublic information to the extent thatit has not been previously provided or made available to Parent, (iy) the approval of this Agreement by the Company’s shareholders Company has not occurredbreached this Section 5.06, and (iiz) the Company Board reasonably determines in good faith, after consultation with its outside legal counselcounsel and financial advisors, that failure to take such action actions would be required in order for directors inconsistent with the fiduciary duties of the Company to comply with their respective fiduciary duties Board under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationLaws.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its Subsidiaries, any of its or its Subsidiaries’ their respective directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it the Company or any of its Subsidiaries Subsidiary in connection with the transactions contemplated by this Agreement (collectively, "Representatives") to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance)initiate, cause, knowingly encourage, or take any other action designed to facilitate or that is likely to result inknowingly facilitate, any inquiries or the making of any proposal that constitutes, constitutes or is reasonably likely to lead to, any Acquisition Proposal, to a Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Takeover Proposal, or (iv) make furnish to any person any information in connection with or authorize any statement or recommendation in support furtherance of any Acquisition Takeover Proposal. IfWithout limiting the foregoing, and only to it is agreed that any violation of the extent that, (i) restrictions set forth in the approval preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Agreement Section 5.02(a) by the Company’s shareholders has not occurred. The Company shall, (ii) and shall cause its Subsidiaries and instruct its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Board reasonably determines Shareholder Approval (and in good faithno event after obtaining such Company Shareholder Approval), after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a an unsolicited bona fide, fide written Acquisition Takeover Proposal not solicited in violation of this Section 6.07(a) made after the date hereof that the Company Board believes determines in good faith (after receiving advice of a financial advisor of nationally recognized reputation, which may be Xxxxx & Steers Capital Advisors, LLC, and of its outside counsel) constitutes or is reasonably likely to constitute a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b)Proposal, the Company may may, if the Company Board determines in good faith (1after receiving advice of its outside counsel) that it is necessary to do so in order to comply with its fiduciary duties to the shareholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) and after giving Parent two business days written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to any Person the person making such an Acquisition Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such oral or written information (to the extent that such information has not been previously provided to Parent) is provided or made available to Parent, as determined by the Company after consultation case may be, prior to or substantially concurrent with its outside legal counsel) on terms substantially similar tothe time it is provided or made available to such person, as the case may be, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2B) participate in discussions or negotiations with the person making such Takeover Proposal (and its Representatives) regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationTakeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Retirement Corp)
No Solicitation by the Company. (a) From the date of this Agreement through until the Effective TimeClosing Date, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Personperson, (i) solicit, solicit or initiate or encourage (including by way of furnishing information or assistancenon-public information), or take any other action designed to facilitate solicit or that is likely to result ininitiate, any inquiries or the making of any proposal that constitutes, which constitutes either a Company Takeover Proposal or is reasonably likely to lead to, any Acquisition Proposal, an Alternative Proposal or (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Company Takeover Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Alternative Proposal. IfNotwithstanding the foregoing, and only to however, if the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably Special Committee determines in good faith, after consultation with its outside legal counsel, that such action would be required it is necessary to do so in order for directors of to act in a manner consistent with its fiduciary duties to the Company's shareholders under applicable Law, the Company to comply with their respective fiduciary duties under applicable law may, in response to any Company Takeover Proposal that the Special Committee in good faith believes is reasonably likely to lead to delivery of a bona fideCompany Superior Proposal, written Acquisition which Company Superior Proposal was not solicited in violation by it and does not otherwise result from a breach of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal 4.10 and, subject to providing prior notice of any such proposal or any such request for non-public information and (iii) the Company provides notice to Parent of its decision to take such action in accordance with to the requirements of Section 6.07(b)Purchaser, the Company may (1x) furnish information with respect to the Company and its Subsidiaries to any Person person inquiring about or making such an Acquisition a Company Takeover Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2y) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationCompany Takeover Proposal, as the case may be.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fidelity National Financial Inc /De/)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Proposal. If, and only to the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation.. 42
Appears in 1 contract
Samples: Agreement and Plan of Merger (Banknorth Group Inc/Me)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries Company Subsidiary to, nor shall it authorize or permit any officer, director or employee of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it of, the Company or any of its Subsidiaries Company Subsidiary to, directly or indirectly through another Person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making submission of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition ProposalCompany Takeover Proposal (as defined below), (ii) enter into any agreement with respect to an Acquisition Proposal, any Company Takeover Proposal or (iii) participate provide any non-public information regarding the Company to any third party or engage in any negotiations or substantive discussions in connection with any Company Takeover Proposal; provided, however, that (A) prior to receipt of the Company Stockholder Approval, the Company may, in response to a Company Takeover Proposal that was not solicited by the Company and that did not otherwise result from a breach of this Section 4.02(a), provide any non-public information regarding itself to any third party or engage in any negotiations or substantive discussions with such person regarding any Acquisition Proposal or (iv) make or authorize any statement or recommendation Company Takeover Proposal, in support of any Acquisition Proposal. If, and each case only to the extent that, (i) the approval of this Agreement by if the Company’s shareholders has not occurred, (ii) the Company 's Board reasonably of Directors determines in good faith, after consultation with counsel and its outside legal counselfinancial advisors, that failing to take such action would be required create a reasonable possibility of a breach of the fiduciary duties of the Company's Board of Directors, and (B) nothing contained in order for directors this Agreement shall prevent the Company or its Board of Directors from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Takeover Proposal or prevent the Company's Board of Directors from taking any action permitted by Section 5.01(d). Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding sentence by any executive officer of the Company or any Company Subsidiary or any investment banker, attorney, accountant or other advisor or representative of the Company or any Company Subsidiary, whether or not such person is purporting to comply act on behalf of the Company or any Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 4.02(a) by the Company. For purposes of this Agreement, "Company Takeover Proposal" means any proposal for a merger, consolidation or other business combination involving the Company or a Company Significant Subsidiary or any proposal or offer to acquire in any manner, directly or indirectly, more than 30% of any class of voting securities of the Company or of a Company Significant Subsidiary (other than where such Company Significant Subsidiary's securities directly or indirectly represent an economic interest in less than 30% of the assets of the Company and the Company Subsidiaries, taken as a whole), including any proposal or offer relating to the acquisition by the Company or a Company Significant Subsidiary in any manner, directly or indirectly, of any securities or assets of another person in consideration for the issuance of more than 30% of any class of voting securities of the Company or of a Company Significant Subsidiary (other than where such Company Significant Subsidiary's securities directly or indirectly represent an economic interest in less than 30% of the assets of the Company and the Company Subsidiaries, taken as a whole), or assets representing a substantial portion of the assets of the Company and the Company Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. The Company shall, and shall cause each Company Subsidiary to, immediately cease and cause to be terminated any existing activities, discussions or negotiations by the Company, any Company Subsidiary or any officer, director or employee of or investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary, with their respective fiduciary duties under applicable law in response any parties conducted heretofore with respect to any of the foregoing. Any action taken by the Company, any Company Subsidiary or any officer, director or employee of or any investment banker, attorney, accountant or other advisor or representative of, the Company or any Company Subsidiary with or with respect to any such party on or prior to November 28, 1996, shall be deemed not to constitute a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a4.02(a) that and shall not in and of itself constitute the solicitation of a Company Board believes in good faith is a Superior Takeover Proposal and (iii) the Company provides notice to Parent of its decision to take even if such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained actions result in any such agreement between party making a Company Takeover Proposal after the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support date of such an Acquisition Proposal and effect a Change in Recommendationthis Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Santa Fe Pacific Gold Corp)
No Solicitation by the Company. (a) From and after the date of this Agreement through the Effective TimeAgreement, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or knowingly permit any officer, director or employee of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other advisor or representative retained by it (collectively, the “Representatives”) of, the Company or any of its Subsidiaries to, directly or indirectly through another Person, (i) solicit, initiate or knowingly or intentionally encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making submission of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Company Takeover Proposal, (ii) enter into any letter of intent, memorandum of understanding or agreement with respect to an Acquisition Proposal, any Company Takeover Proposal or (iii) participate other than informing persons of the existence of this Section 5.2, provide any non-public information regarding the Company to any third party or engage in any negotiations or substantive discussions or negotiations regarding in connection with any Acquisition Proposal or (iv) make or authorize any statement or recommendation in support of any Acquisition Company Takeover Proposal. If; provided, and only however, that prior to the extent thatreceipt of Shareholder Approval, (i) the approval Company and the Representatives of the Company may, in response to a Company Takeover Proposal that was not solicited, initiated or knowingly or intentionally encouraged by the Company or a Representative of the Company in breach of this Agreement by Section 5.2(a), make such inquiries as may be necessary to inform itself of the Company’s shareholders has not occurredproposed terms and details of the unsolicited Company Takeover Proposal and, (ii) if the Company Board reasonably determines in good faith, after consultation with counsel and its outside legal counselfinancial advisor, that such action would be required the following actions could result in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to Takeover Proposal becoming a bona fideCompany Superior Proposal, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish provide any non-public information with respect to regarding the Company to any Person making third-party or engage in any negotiations or substantive discussions with such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the person regarding any Company after consultation with Takeover Proposal. The Company shall, and shall cause each of its outside legal counsel) on terms substantially similar Subsidiaries to, immediately cease and no less favorable cause to the Company thanbe terminated any existing activities, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize by the Company, any statement Subsidiary of the Company or recommendation in support any Representative of such an Acquisition Proposal and effect a Change in Recommendationthe Company, with any parties conducted heretofore with respect to any of the foregoing.
Appears in 1 contract
No Solicitation by the Company. (a) From Subject to the other provisions of this Section 6.3, from and after the date hereof until the Effective Time or, if earlier, the valid termination of this Agreement through the Effective Timepursuant to Article 8, the Company shall not, nor and shall it permit any cause the Company Subsidiaries and its and their Representatives (on behalf of its Subsidiaries the Company or the Company Subsidiaries, as applicable) not to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Person, (i) initiate, solicit, initiate or encourage knowingly facilitate (including by way providing access to its properties, books and records or data or any non-public information concerning the Company or any Company Subsidiary to any Third Party or group for the purpose of furnishing information facilitating any inquiries, proposals or assistance)offers relating to any Company Acquisition Proposal) or knowingly encourage any inquiries, proposal or take any other action designed offer that constitutes or would reasonably be expected to facilitate or that is likely lead to result in, any inquiries a Company Acquisition Proposal or the making of consummation thereof or enter into, continue or otherwise participate or engage in any proposal that constitutes, discussions or is reasonably likely to lead to, any Acquisition Proposalnegotiations with respect thereto, (ii) enter into approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any agreement with respect to an Company Acquisition Proposal, (iii) participate effectuate a Company Change of Board Recommendation, (iv) enter into any merger agreement, acquisition agreement, letter of intent or other similar agreement or arrangement relating to any Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to Section 6.3(b)), (v) take any action to exempt any Person from, or make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation or any similar anti-takeover provision in the Company Charter or the Company Bylaws, that applies to the Company or (vi) authorize any of, or commit, resolve or agree to do any of the foregoing. Subject to the other provisions of this Section 6.3, the Company shall, and shall cause the Company Subsidiaries and the Company’s Representatives (on behalf of the Company or the Company Subsidiaries) to, (A) promptly (and, in any discussions event, within twenty-four (24) hours after the execution of this Agreement) cease any discussion or negotiations regarding negotiation with any Persons (other than Parent and its Affiliates and Representatives on its behalf) prior to the date hereof by the Company, the Company Subsidiaries or any of the Company’s Representatives with respect to any Company Acquisition Proposal, (B) promptly (and, in any event, within twenty-four (24) hours after the execution of this Agreement) terminate access by any Third Party to any physical or electronic data room relating to any Company Acquisition Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Company Acquisition Proposal and (ivC) make promptly (and in any event within two (2) Business Days after the execution of this Agreement) request the prompt return or authorize any statement or recommendation in support destruction of any Acquisition Proposalconfidential information provided to any Third Party. If, and only Notwithstanding anything to the extent thatcontrary contained in this Section 6.3(a), the Company and the Company’s Representatives may (iA) contact any Person that has made after the approval date of this Agreement by the Company’s shareholders has not occurred, (ii) the Company Board reasonably determines in good faith, after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a bona fide, written unsolicited Company Acquisition Proposal solely in order to seek to clarify and understand the terms and conditions thereof (which contact, for the avoidance of doubt, shall not solicited include any negotiation of such terms or conditions) in violation order to determine whether such inquiry, proposal or offer constitutes or would reasonably be expected to lead to a Superior Company Proposal and (B) inform a Third Party that has made or is considering making a Company Acquisition Proposal of the provisions of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in Recommendation6.3.
Appears in 1 contract
No Solicitation by the Company. (a) From During the date of this Agreement through the Effective TimePre-Closing Period, the Company shall notnot directly or indirectly, nor and shall it permit any of its Subsidiaries to, nor shall it not authorize or permit any of its or its Subsidiaries’ directors, officers or employees the other Acquired Corporations or any investment banker, financial advisor, attorney, accountant or other representative retained by it or Representative of any of its Subsidiaries to, the Acquired Corporations directly or indirectly through another Personto, (i) solicit, initiate initiate, encourage, induce or encourage (including by way facilitate the making, submission or announcement of furnishing information or assistance), any Company Acquisition Proposal or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is could reasonably likely be expected to lead to, any to a Company Acquisition Proposal, (ii) enter into furnish any agreement information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with respect or in response to a Company Acquisition Proposal or an inquiry or indication of interest that reasonably could be expected to lead to a Company Acquisition Proposal, (iii) participate engage in any discussions or negotiations regarding with any Person with respect to any Company Acquisition Proposal, (iv) approve, endorse or recommend any Company Acquisition Proposal or (ivv) make enter into any letter of intent or authorize similar document or any statement Contract contemplating or recommendation otherwise relating to any Company Acquisition Transaction; provided, however, that this Section 4.3(a) shall not prohibit (A) the Company, or the Board of Directors of the Company, from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in support response to a Company Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any Acquisition Proposal. If, and only to of the extent thatAcquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (i2) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines concludes in good faith, after consultation with its outside legal counsel, that such action would be is required in order for directors the Board of Directors of the Company to comply with their respective its fiduciary duties under applicable law in response to a bona fide, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1) furnish information with respect obligations to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement under applicable Legal Requirements, (as determined by 3) the Company Board of Directors determines in good faith, after consultation with its outside legal counsel) on terms substantially similar to, and no less favorable that taking such action would be reasonably likely to lead to the delivery of a Company thanSuperior Offer, the terms contained in any such agreement between the Company and Parent, (4) at least two (2) participate in business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic information to, or negotiations regarding enter into discussions with, such Person, and the Company receives from such Person an Acquisition Proposal executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person or any of such Person's Representatives by or on behalf of the Company, and (35) authorize at least two (2) business days prior to furnishing any statement such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent); or recommendation (B) the Company from complying with Rule 14e-2 promulgated under the Exchange Act with regard to a Company Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the restrictions set forth in support the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such an Acquisition Proposal and effect Representative is purporting to act on behalf of any of the Acquired Corporations, shall be deemed to constitute a Change in Recommendationbreach of this Section 4.3 by the Company.
Appears in 1 contract
Samples: Ii Agreement and Plan of Reorganization (Titan Corp)
No Solicitation by the Company. (a) The Company shall, and the Company shall direct and use its reasonable efforts to cause the Company’s affiliates, directors, officers, employees, agents and representatives (including without limitation any investment banker, financial advisor, attorney, accountant or other representative retained by the Company) to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal. From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ the Company’s directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (ii) except in accordance with Section 9.1(f) hereof, enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Proposal, or (iv) make or authorize any statement statement, recommendation or recommendation solicitation in support of any Acquisition Proposal. If; provided, however, that prior to the twentieth (20th) day after the date of distribution (the “Proxy Statement Distribution Date”) of the Proxy Statement to the shareholders of the Company, if, and only to the extent that, (i) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines in good faith, after consultation with its outside legal counseland financial advisors, that such action the failure to do so would reasonably be required in order for directors of expected to breach the Company to comply with their respective Board’s fiduciary duties under applicable law law, the Company may, in response to a bona fide, fide written Acquisition Proposal not solicited in violation of this Section 6.07(a7.2(a) that the Board of Directors of the Company Board believes in good faith is constitutes a Superior Proposal and Proposal, subject to providing forty-eight (iii48) the Company provides hours prior written notice to Parent Buyer of its the Board’s decision to take such action in accordance and identifying the person making the proposal and all the material terms and conditions of such proposal (the “Company Notice”) and compliance with the requirements Section 7.2(b) hereof, following delivery of Section 6.07(b), the Company may Notice, (1) furnish information with respect to the Company to any Person person making such an Acquisition a Superior Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel) on terms substantially similar to, and no less more favorable to the Company than, such person than the terms contained in any such agreement between the Company and ParentBuyer, and (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationSuperior Proposal.
Appears in 1 contract
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its Subsidiaries, any of its or its Subsidiaries’ their respective directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it the Company or any of its Subsidiaries Subsidiary in connection with the transactions contemplated by this Agreement (collectively, "Representatives") to, directly or indirectly through another Personperson, (i) solicit, initiate or encourage (including by way of furnishing information or assistance)initiate, cause, knowingly encourage, or take any other action designed to facilitate or that is likely to result inknowingly facilitate, any inquiries or the making of any proposal that constitutes, constitutes or is reasonably likely to lead to, any Acquisition Proposal, to a Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any discussions or negotiations regarding any Acquisition Proposal Takeover Proposal, or (iv) make furnish to any person any information in connection with or authorize any statement or recommendation in support furtherance of any Acquisition Takeover Proposal. IfWithout limiting the foregoing, and only to it is agreed that any violation of the extent that, (i) restrictions set forth in the approval preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Agreement Section 5.02(a) by the Company’s shareholders has not occurred. The Company shall, (ii) and shall cause its Subsidiaries and instruct its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Board reasonably determines Shareholder Approval (and in good faithno event after obtaining such Company Shareholder Approval), after consultation with its outside legal counsel, that such action would be required in order for directors of the Company to comply with their respective fiduciary duties under applicable law in response to a an unsolicited bona fide, fide written Acquisition Takeover Proposal not solicited in violation of this Section 6.07(a) made after the date hereof that the Company Board believes determines in good faith (after receiving advice of a financial advisor of nationally recognized reputation, which may be Cohen & Steers Capital Advisors, LLC, and of its outside counsel) consxxxxxes or is reasonably likely to constitute a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b)Proposal, the Company may may, if the Company Board determines in good faith (1after receiving advice of its outside counsel) that it is necessary to do so in order to comply with its fiduciary duties to the shareholders of the Company under applicable Law, and subject to compliance with Section 5.02(c) and after giving Parent two business days written notice of such determination, (A) furnish information with respect to the Company and its Subsidiaries to any Person the person making such an Acquisition Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement, provided that all such oral or written information (to the extent that such information has not been previously provided to Parent) is provided or made available to Parent, as determined by the Company after consultation case may be, prior to or substantially concurrent with its outside legal counsel) on terms substantially similar tothe time it is provided or made available to such person, as the case may be, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2B) participate in discussions or negotiations with the person making such Takeover Proposal (and its Representatives) regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support of such an Acquisition Proposal and effect a Change in RecommendationTakeover Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Brookdale Senior Living Inc.)
No Solicitation by the Company. (a) From the date of this Agreement through the Effective Time, the The Company shall not, agrees that neither it nor shall it permit any of its Subsidiaries toshall, nor shall it authorize or permit any of its or its Subsidiaries’ their respective directors, officers or officers, employees or any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative retained by it of the Company or any of its Subsidiaries Subsidiary (collectively, “Representatives”) to, directly or indirectly through another Personindirectly, (i) solicit, initiate or encourage (including by way of furnishing information or assistance)initiate, cause, or take any other action designed to facilitate knowingly encourage or that is likely to result infacilitate, any inquiries or the making of any proposal or offer that constitutes, constitutes or is reasonably likely to lead to, any Acquisition Proposal, to a Company Takeover Proposal or (ii) enter into any agreement with respect to an Acquisition Proposal, (iii) participate in any negotiations or substantive discussions regarding any Company Takeover Proposal, or furnish to any person any non-public information in connection with or in furtherance of, or otherwise cooperate with or knowingly assist any person in connection with, any Company Takeover Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Representative of the Company or any of its Subsidiaries shall be a breach of this Section 5.2(a) by the Company. The Company shall, and shall cause its Subsidiaries and instruct its Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations regarding with any Acquisition person conducted heretofore with respect to any Company Takeover Proposal and request the prompt return or destruction of all confidential information previously furnished. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (iv) make or authorize any statement or recommendation and in support of any Acquisition Proposal. Ifno event after obtaining such Company Stockholder Approval), and only in response to an unsolicited bona fide written Company Takeover Proposal made after the extent that, (i) the approval of this Agreement by the Company’s shareholders has not occurred, (ii) date hereof that the Company Board reasonably determines in good faithfaith (after consultation with its financial advisor and its outside counsel) constitutes or could reasonably be expected to lead to a Company Superior Proposal, the Company may, if the Company Board determines in good faith (after consultation with its outside legal counsel, ) that failure to take such action would be required reasonably likely to result in order for directors a breach of its fiduciary duties to the stockholders of the Company to comply with their respective fiduciary duties under applicable law in response Law, and subject to a bona fidecompliance with Section 5.2(c) and after giving Parent one Business Day written notice of such determination, written Acquisition Proposal not solicited in violation of this Section 6.07(a) that the Company Board believes in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b), the Company may (1A) furnish information with respect to the Company and its Subsidiaries to any Person the person making such an Acquisition Company Takeover Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive of such person than the Confidentiality Agreement; provided that all such information (to the extent that such information has not been previously provided or Made Available to Parent) is provided or Made Available to Parent, as determined by the Company after consultation case may be, prior to or substantially concurrent with its outside legal counsel) on terms substantially similar tothe time it is provided or Made Available to such person, as the case may be, and no less favorable to the Company than, the terms contained in any such agreement between the Company and Parent, (2B) participate in discussions or negotiations with the person making such Company Takeover Proposal (and its Representatives) regarding such an Acquisition Company Takeover Proposal, and otherwise cooperate with and assist the person making such Company Takeover Proposal and (3) authorize any statement or recommendation in support of with respect to such an Acquisition Proposal and effect a Change in RecommendationCompany Takeover Proposal.
Appears in 1 contract
No Solicitation by the Company. (a) From During the date of this Agreement through the Effective TimePre-Closing Period, the Company shall notnot directly or indirectly, nor and shall it permit any of its Subsidiaries to, nor shall it not authorize or permit any of its or its Subsidiaries’ directors, officers or employees the other Acquired Corporations or any investment banker, financial advisor, attorney, accountant or other representative retained by it or Representative of any of its Subsidiaries to, the Acquired Corporations directly or indirectly through another Personto, (i) take any action to solicit, initiate initiate, induce or encourage (including by way of furnishing information or assistance), or take any other action designed seek to facilitate the making, submission or that is likely to result in, any inquiries or the making announcement of any proposal that constitutes, or is reasonably likely to lead to, any Company Acquisition Proposal, (ii) enter into furnish any agreement nonpublic information regarding any of the Acquired Corporations to any Person (other than Parent or Merger Sub) in connection with respect or in response to a Company Acquisition Proposal or an inquiry or indication of interest that the Company reasonably believes could be expected to lead to a Company Acquisition Proposal, (iii) participate engage in any discussions or negotiations regarding with any Person with respect to any Company Acquisition Proposal or Proposal, (iv) make approve, endorse or authorize recommend any statement Company Acquisition Proposal, or recommendation (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Company Acquisition Transaction; provided, however, that this Section 4.3 shall not prohibit (A) the Company, or the Board of Directors of the Company, from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions or negotiations with, any Person in support response to a Company Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any Acquisition Proposal. If, and only to of the extent thatAcquired Corporations shall have violated any of the restrictions set forth in this Section 4.3, (i2) the approval Board of this Agreement by the Company’s shareholders has not occurred, (ii) Directors of the Company Board reasonably determines concludes in good faith, after consultation with its outside legal counsel, that such action would be with respect to such Company Superior Offer is required in order for directors to comply with the fiduciary duties of the Board of Directors of the Company to comply with their respective fiduciary duties the Company shareholders under applicable law in response to a bona fideLegal Requirements, written Acquisition Proposal not solicited in violation and (3) the Board of this Section 6.07(a) that the Company Board believes Directors determines in good faith is a Superior Proposal and (iii) the Company provides notice to Parent of its decision to take such action in accordance with the requirements of Section 6.07(b)faith, the Company may (1) furnish information with respect to the Company to any Person making such an Acquisition Proposal pursuant to a customary confidentiality agreement (as determined by the Company after consultation with its outside legal counsel, that taking such action would be reasonably likely to lead to the consummation of a Company Superior Offer, (4) on terms substantially similar the Company gives Parent prompt written notice (in any event, within 24 hours of receipt of any Company Acquisition Proposal) of the identity of such Person and of the Company's intention to furnish nonpublic information to, or enter into discussions with, such Person, and no less favorable the Company receives from such Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such Person or any of such Person's Representatives by or on behalf of the Company, and (5) the Company furnishes such nonpublic information to such Person and to Parent at substantially the same time (to the extent such nonpublic information has not been previously furnished by the Company thanto Parent); or (B) the Company from complying with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to any Company Acquisition Proposal. Without limiting the generality of the foregoing, the terms contained Company acknowledges and agrees that any violation of any of the restrictions set forth in the preceding sentence by any Representative of any of the Acquired Corporations, whether or not such agreement between Representative is purporting to act on behalf of any of the Company and ParentAcquired Corporations, (2) participate in discussions or negotiations regarding such an Acquisition Proposal and (3) authorize any statement or recommendation in support shall be deemed to constitute a breach of such an Acquisition Proposal and effect a Change in Recommendationthis Section 4.3 by the Company.
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Samples: Agreement and Plan of Reorganization (Cylink Corp /Ca/)
